\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Michael Cuero v. Scott Kernan\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-28\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n MICHAEL DANIEL CUERO, No. 12-55911\n Petitioner-Appellant,\n D.C. No.\n v. 3:08-cv-02008-\n BTM-WMC\n SCOTT KERNAN,\n Respondent-Appellee.\n ORDER\n\n Filed January 28, 2019\n\n Before: Diarmuid F. O’Scannlain, Barry G. Silverman,\n and Kim McLane Wardlaw, Circuit Judges.\n\n\n\n SUMMARY *\n\n\n Habeas Corpus\n\n The panel denied a petition for panel rehearing in a case\nin which, on remand from the Supreme Court, the panel\naffirmed the judgment of the district court in light of Kernan\nv. Cuero, 138 S. Ct. 4 (2017).\n\n *\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\n2 CUERO V. KERNAN\n\n Dissenting from the denial of the petition for panel\nrehearing, Judge Wardlaw wrote that she would have\nreversed in part and remanded with instructions to remand to\nthe state court for any further consideration it deems\nnecessary to remediate the violation of Cuero’s due process\nrights.\n\n\n ORDER\n\n Both Judges O’Scannlain and Silverman voted to deny\nAppellant’s petition for panel rehearing. Judge Wardlaw\nvotes to grant the petition for panel rehearing. Accordingly,\nAppellant’s petition for panel rehearing is DENIED.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Michael Cuero v. Scott Kernan\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-01-28\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\n MICHAEL DANIEL CUERO, No. 12-55911\\n Petitioner-Appellant,\\n D.C. No.\\n v. 3:08-cv-02008-\\n BTM-WMC\\n SCOTT KERNAN,\\n Respondent-Appellee.\\n ORDER\\n\\n Filed January 28, 2019\\n\\n Before: Diarmuid F. O’Scannlain, Barry G. Silverman,\\n and Kim McLane Wardlaw, Circuit Judges.\\n\\n\\n\\n SUMMARY *\\n\\n\\n Habeas Corpus\\n\\n The panel denied a petition for panel rehearing in a case\\nin which, on remand from the Supreme Court, the panel\\naffirmed the judgment of the district court in light of Kernan\\nv. Cuero, 138 S. Ct. 4 (2017).\\n\\n *\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\n2 CUERO V. KERNAN\\n\\n Dissenting from the denial of the petition for panel\\nrehearing, Judge Wardlaw wrote that she would have\\nreversed in part and remanded with instructions to remand to\\nthe state court for any further consideration it deems\\nnecessary to remediate the violation of Cuero’s due process\\nrights.\\n\\n\\n ORDER\\n\\n Both Judges O’Scannlain and Silverman voted to deny\\nAppellant’s petition for panel rehearing. Judge Wardlaw\\nvotes to grant the petition for panel rehearing. Accordingly,\\nAppellant’s petition for panel rehearing is DENIED.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":366,"cells":{"id":{"kind":"number","value":4585195,"string":"4,585,195"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Aspic Engineering and Constr. v. Ecc Centcom Constructors LLC"},"decision_date":{"kind":"string","value":"2019-01-28"},"docket_number":{"kind":"string","value":"17-16510"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: MILAN D. SMITH, JR. and JACQUELINE H. NGUYEN, Circuit Judges, and JANE A. RESTANI, * Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"M. SMITH, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"FOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\n ASPIC ENGINEERING AND No. 17-16510\\n CONSTRUCTION COMPANY,\\n Plaintiff-Appellant, D.C. No.\\n 4:17-cv-00224-\\n v. YGR\\n\\n ECC CENTCOM CONSTRUCTORS\\n LLC; ECC INTERNATIONAL LLC, OPINION\\n Defendants-Appellees.\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of California\\n Yvonne Gonzalez Rogers, District Judge, Presiding\\n\\n Argued and Submitted December 17, 2018\\n San Francisco, California\\n\\n Filed January 28, 2019\\n\\n Before: MILAN D. SMITH, JR. and JACQUELINE H.\\n NGUYEN, Circuit Judges, and JANE A. RESTANI, *\\n Judge.\\n\\n Opinion by Judge Milan D. Smith, Jr.\\n\\n *\\n The Honorable Jane A. Restani, Judge for the United States Court\\nof International Trade, sitting by designation.\\n\\f2 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\\n\\n SUMMARY **\\n\\n\\n Arbitration\\n\\n The panel affirmed the district court’s order vacating\\nunder the Federal Arbitration Act an arbitration award\\nconcerning the termination for convenience of two\\nsubcontracts for the construction of buildings and facilities\\nin Afghanistan.\\n\\n The subcontracts were in support of defendants’ prime\\ncontracts with the U.S. Army Corps of Engineers. The\\nsubcontracts incorporated by reference Federal Acquisition\\nRegulation (“FAR”) clauses governing termination for\\nconvenience, and they contained a clause mandating that\\nplaintiff, a local company, owed to defendants the same\\nobligations that defendants owed to the U.S. government.\\nVoiding parts of the subcontracts, the arbitrator awarded\\nplaintiff some of its claimed costs despite plaintiff’s failure\\nto comply with FAR requirements.\\n\\n The panel held that, in finding that plaintiff need not\\ncomply with the FAR provisions, the arbitrator exceeded his\\npowers and failed to draw the essence of the award from the\\nsubcontracts. The arbitrator’s award was “irrational”\\nbecause he improperly based his conclusion not on past\\npractices, but on his rationalization that to enforce the FAR\\nclauses on plaintiff would be unjust.\\n\\n\\n\\n\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\f ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 3\\n\\n COUNSEL\\n\\nWalt Pennington (argued), Pennington Law Firm, San\\nDiego, California, for Plaintiff-Appellant.\\n\\nJoseph G. Martinez (argued), Dentons US LLP, Denver,\\nColorado; Andrew S. Azarmi, Dentons US LLP, San\\nFrancisco, California; for Defendants-Appellees.\\n\\n\\n OPINION\\n\\nM. SMITH, Circuit Judge:\\n\\n In this opinion, we review the award to Aspic\\nEngineering and Construction Company (Aspic) following\\narbitration between Aspic and ECC Centcom Constructors,\\nLLC and ECC International, LLC (together, ECC). ECC and\\nAspic entered into arbitration to resolve how much money\\nECC owed Aspic after ECC terminated for convenience two\\nsubcontracts it had awarded to Aspic. The arbitrator\\nawarded Aspic just over $1 million, but ECC sought\\nsuccessfully to vacate the award in the district court. We\\naffirm the district court’s vacation of the arbitration award.\\n\\n FACTUAL AND PROCEDURAL BACKGROUND\\n\\nI. The Subcontracts\\n\\n In support of its prime contracts with the United States\\nArmy Corps of Engineers (USACE), ECC awarded Aspic\\ntwo subcontracts for the construction of various buildings\\nand facilities in Afghanistan. The first was to be performed\\nin Badghis province (the Badghis Subcontract). The second\\nrequired the construction of a training facility in Sheberghan\\nprovince (Sheberghan Subcontract).\\n\\f4 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\\n\\n The Badghis Subcontract and the Shebergan Subcontract\\n(together, the Subcontracts) contained terms and conditions\\n“applicable to all U.S. Government subcontracts.”\\nSpecifically, the Subcontracts incorporated many Federal\\nAcquisition Regulation (FAR) 1 clauses by reference, or in\\nhaec verba. These clauses included FAR 49.2 through 49.6,\\nwhich govern termination for convenience. The\\nSubcontracts also contained the following clause mandating\\nthat Aspic owe to ECC the same obligations that ECC owed\\nto the United States government, as set forth in the FAR\\nclauses: “The obligations of [ECC] to the Government as\\nprovided in said clauses shall be deemed to be the\\nobligations of Subcontractor to [ECC].”\\n\\n USACE eventually terminated ECC’s prime contract for\\nconvenience on the Badghis project. Days later, ECC\\nnotified Aspic that it was terminating the Badghis\\nSubcontract for convenience. Understandably, Aspic sought\\npayment for its expenses. On February 9, 2014, Aspic\\nsubmitted its termination settlement proposal for the\\nBadghis project to ECC. After review, ECC informed Aspic\\nthat the corroborative documents it had submitted in support\\nof its settlement proposal were inadequate, and Aspic\\nadmitted it did not have many of the required materials.\\nNevertheless, ECC eventually submitted its termination\\nsettlement proposal to USACE, and included Aspic’s claim\\nfor $229,915 in termination costs within that proposal.\\n\\n Upon receipt of the termination settlement proposal,\\nUSACE notified ECC that it would not pay any of ECC’s\\nsubcontractor termination costs—including the money\\nAspic claimed it was owed—until the Defense Contract\\n\\n 1\\n Title 48 of the Code of Federal Regulations contains the FAR\\nregulations.\\n\\f ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 5\\n\\nAudit Agency had conducted an audit. Following that audit,\\nUSACE informed ECC that it had overpaid Aspic for its\\nperformance under the Badghis Subcontract. In light of that\\ndetermination, USACE refused to pay any of Aspic’s\\nclaimed termination costs.\\n\\n USACE also terminated ECC’s contract for the\\nSheberghan project for convenience. Two days later, ECC\\nterminated the Sheberghan Subcontract for convenience.\\n\\n Aspic again submitted a termination settlement proposal\\nto ECC, this time requesting $1,032,462. ECC, however, did\\nnot present these claimed costs to the USACE. USACE\\neventually issued a no-cost termination settlement between\\nUSACE and ECC—a settlement in which USACE claimed\\nthat the money previously paid to ECC and its\\nsubcontractors, including Aspic, constituted adequate\\ncompensation.\\n\\nII. Prior Proceedings\\n\\n Aspic believed it deserved more money for its efforts\\nunder the Subcontracts. In August 2015, it submitted a\\nsettlement demand for $652,000 on the Sheberghan\\nSubcontract. ECC refused to pay, so Aspic filed for\\narbitration. Aspic again tried to settle the dispute—issuing\\nsettlement offers of $830,000 to ECC Centcom Constructors\\nand $150,000 to ECC International—but ECC did not accept\\neither of these offers.\\n\\n In accordance with the Subcontracts, the parties\\nproceeded to arbitration. 2 The Arbitrator issued a Partial\\n 2\\n Part A “General Terms and Conditions” of the Subcontracts\\ncontained provisions requiring arbitration for disputes arising from the\\ncontracts and the application of California law.\\n\\f6 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\\n\\nFinal Award, awarding Aspic $1,072,520.90 and holding\\nECC Centcom Constructors and ECC International jointly\\nand severally liable for the total amount. Aspic then sought\\nattorneys’ fees and costs. Contemporaneously, ECC moved\\nto reduce the Partial Final Award by Aspic’s waived\\ndamages, and opposed Aspic’s request by arguing that each\\nparty ought to bear its own attorneys’ fees. The Arbitrator’s\\nFinal Award (the Award) incorporated the Partial Final\\nAward, denied attorneys’ fees and costs, and awarded Aspic\\nhalf of the administrative fees and expenses.\\n\\n Aspic filed a petition in the Superior Court for San Mateo\\nCounty, California seeking to confirm the Award. Aspic\\nalso sought to reverse the Arbitrator’s determination that it\\nwas not entitled to attorneys’ fees. The Superior Court\\naffirmed the Award and modified it to award Aspic\\nattorneys’ fees of $435,840, plus all of its arbitration costs.\\nThe Superior Court then denied ECC’s ex parte application\\nto vacate its prior order.\\n\\n ECC removed the case to the Northern District of\\nCalifornia. Before the district court, ECC renewed its effort\\nto vacate the Award and the Superior Court’s judgment.\\nAspic did not oppose ECC’s motion to vacate the Superior\\nCourt’s judgment, and the district court granted that motion.\\n\\n The district court then held a hearing on the parties’\\nmotions to vacate the Award and to confirm and correct the\\nAward. Following the hearing, the district court vacated the\\nAward. The court held that the Award conflicted with the\\ncontract because the arbitrator “voided and reconstructed\\nparts of the Subcontracts based on a belief that the\\nSubcontracts did not reflect a ‘true meetings [sic] of the\\nminds.’” Aspic moved for reconsideration, which the court\\ndenied. Aspic then timely appealed.\\n\\f ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 7\\n\\n JURISDICTION AND STANDARD OF REVIEW\\n\\n We have jurisdiction pursuant to 9 U.S.C. § 16 and\\n28 U.S.C. § 1291. The Supreme Court has held that review\\nof a district court’s decision confirming an arbitration award\\n“should proceed like review of any other district court\\ndecision finding an agreement between two parties, e.g.,\\naccepting findings of fact that are not ‘clearly erroneous’ but\\ndeciding questions of law de novo.” First Options of\\nChicago, Inc. v. Kaplan, 514 U.S. 938, 948 (1995). We\\napply the same standard of review where the district court\\nvacates an arbitration award. See Aramark Facility Servs. v.\\nServ. Emp’s Int’l Union, Local 1877, AFL CIO, 530 F.3d\\n817, 822 (9th Cir. 2008) (applying de novo review for legal\\nrulings and clear error for findings of fact).\\n\\n ANALYSIS\\n\\n Aspic offers a litany of reasons why the Arbitrator’s\\nAward was rational. However, that argument ignores our\\nlimited powers when reviewing arbitrated cases. Pursuant to\\nthe Federal Arbitration Act (FAA), we “must” confirm an\\narbitration award unless we vacate, modify, or correct the\\naward as prescribed in 9 U.S.C. §§ 10 and 11. Bosack v.\\nSoward, 586 F.3d 1096, 1102 (9th Cir. 2009). “Neither\\nerroneous legal conclusions nor unsubstantiated factual\\nfindings justify federal court review” of an arbitral award\\nunder the FAA. Id. Review of an arbitration award is “both\\nlimited and highly deferential.” Comedy Club, Inc. v.\\nImprov W. Assocs., 553 F.3d 1277, 1288 (9th Cir. 2009)\\n(quoting Poweragent Inc. v. Elec. Data Sys. Corp., 358 F.3d\\n1187, 1193 (9th Cir. 2004)).\\n\\n We may vacate an arbitration award where, among other\\nreasons, “the arbitrators exceeded their powers, or so\\nimperfectly executed them that a mutual, final, and definite\\n\\f8 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\\n\\naward upon the subject matter submitted was not made.”\\n9 U.S.C. § 10. We have held that arbitrators “exceed their\\npowers” when the award is “completely irrational” or\\nexhibits a “manifest disregard of the law.” Kyocera Corp. v.\\nPrudential-Bache Trade Servs., Inc., 341 F.3d 987, 997 (9th\\nCir. 2003) (internal citations omitted).\\n\\n An award is completely irrational “only where the\\narbitration decision fails to draw its essence from the\\nagreement.” Comedy Club, 553 F.3d at 1288 (quoting\\nHoffman v. Cargill Inc., 236 F.3d 458, 461–62 (8th Cir.\\n2001)). An arbitration award “draws its essence from the\\nagreement” if the award is derived from the agreement,\\nviewed “in light of the agreement’s language and context, as\\nwell as other indications of the parties’ intentions.” Bosack,\\n586 F.3d at 1106 (quoting McGrann v. First Albany Corp.,\\n424 F.3d 743, 749 (8th Cir. 2005)). Under this standard of\\nreview, we decide “only whether the [arbitrator’s] decision\\n‘draws its essence’ from the contract,” not the “rightness or\\nwrongness” of the arbitrator’s contract interpretation. Id.\\n(quoting Pacific Reinsurance Mgmt. Corp. v. Ohio\\nReinsurance Corp., 935 F.2d 1019, 1024 (9th Cir. 1991)).\\n\\n The question in this appeal, therefore, is not whether the\\nArbitrator’s Award was reasonable overall, but whether the\\nArbitrator exceeded his powers in finding that Aspic need\\nnot comply with the FAR provisions. We hold that he did.\\n\\n In this case, the Arbitrator held, in relevant part:\\n\\n The parties entered into two lengthy\\n subcontract agreements for the two projects\\n which were prepared by ECC and presented\\n to ASPIC. Each subcontract included very\\n detailed provisions relating to Federal\\n regulations governing the work as well as\\n\\fASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 9\\n\\n pass through and ‘Pay when/if Paid’ clauses.\\n The subcontracts were somewhat onerous as\\n to ASPIC and were clearly drafted to give\\n every advantage to ECC. In light of the fact\\n that the ASPIC was a local Afghanistan\\n subcontractor that had some experience with\\n government contracting but not nearly as\\n extensive as that of ECC, and in view of the\\n fact that the normal business practices and\\n customs of subcontractors in Afghanistan\\n were more ‘primitive’ than those of U.S[.]\\n subcontractors experienced with U.S[.]\\n Government work, it was not reasonable to\\n expect that Afghanistan subcontractors\\n would be able to conform to the strict and\\n detailed requirements of general contractors\\n on U.S. Federal projects. Notwithstanding\\n that expectation, ECC prepared its\\n subcontract agreements to require the same\\n level of precision and adherence to Federal\\n procedures from ASPIC as ECC had toward\\n the USACE through the pass through\\n provisions of the agreements.\\n\\n It was not reasonable that when the parties\\n entered into the subcontract agreements, they\\n both had the same expectations as to the\\n performance of the agreements. ECC could\\n not expect that ASPIC would be capable of\\n modifying their local business practices to\\n completely and strictly conform to the US\\n governmental contracting practices that were\\n normal to ECC. There was not a true meeting\\n of the minds when the subcontract\\n agreements were entered. Hence, ASPIC was\\n\\f10 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\\n\\n not held to the strict provisions of the\\n subcontract agreements that ECC had to the\\n USACE. This arbitration demonstrated that\\n ASPIC conducted its business practices in a\\n manner normal to Afghanistan which was\\n clearly not the same as a U[.]S[.]\\n subcontractor working on a Federal project in\\n the U.S. (emphasis added).\\n\\n Aspic contends that vacatur of the Award is not\\nwarranted because the Arbitrator did not exceed his powers\\nin holding that ECC never intended for Aspic to conform\\nfully to the Subcontracts’ terms. Conversely, ECC argues\\nthat the Arbitrator erred by explicitly disregarding the\\nSubcontracts’ requirements. The crux of this dispute,\\ntherefore, is whether the Arbitrator improperly strayed from\\nthe plain text of the contract.\\n\\n An arbitrator may interpret the contract “in light of . . .\\nindications of the parties’ intentions” and find that the\\nparties’ conduct modified the text of a contract. See Bosack,\\n586 F.3d at 1106. In Metzler Contracting Co. v. Stephens,\\nfor example, we held that an arbitrator acted within his\\npowers when he concluded that the parties, “through their\\nacts and conduct,” had waived a portion of the underlying\\ncost-plus contract. 479 F. App’x 783, 784 (9th Cir. 2012).\\nWe found “plausible” the arbitrator’s interpretation of the\\ncontract despite the contract’s provision limiting the parties’\\nability to waive contract provisions. Id. at 784–85.\\n\\n What an arbitrator may not do, however, is disregard\\ncontract provisions to achieve a desired result. In Pacific\\nMotor Trucking Co. v. Automotive Machinists Union, the\\narbitrator ruled that the company could not demote an\\nemployee from the Working Foreman position\\n\\f ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 11\\n\\nnotwithstanding the fact that the contract granted the\\ncompany discretion over the position. 702 F.2d 176, 177\\n(9th Cir. 1983). We noted that while the arbitrator attempted\\nto “justify the award on the basis of past practice . . . there\\nwas no practice indicating that the employer lacked\\ndiscretion over maintaining the [Working Foreman]\\nposition.” Id. Thus, we held that the district court properly\\nvacated the award because the arbitrator “dispense[d] his\\nown brand of industrial justice” by “disregard[ing] a specific\\ncontract provision to correct what he perceived as an\\ninjustice.” Id. (quoting United Steelworkers of Am. v.\\nEnterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960)).\\n\\n Here, the Subcontracts incorporate numerous FAR\\nprovisions, including those that govern termination for\\nconvenience and the settlement procedure. FAR § 52.249-2\\nsets forth the procedure to be used in the event of termination\\nfor convenience. 48 C.F.R. § 52.249-2. FAR § 49.108-3\\nrequires that each settlement be “supported by accounting\\ndata and other information sufficient for adequate review by\\nthe Government,” and “in general conformity with the\\npolicies and principles . . . in this subpart and subparts 49.2\\nor 49.3.” 48 C.F.R. § 49.108-3.\\n\\n As the district court determined, the Award “conflicts\\ndirectly with the [Sub]contract[s].” The Arbitrator\\nrecognized that the Subcontracts’ pass-through provisions\\nobligated Aspic to meet the FAR requirements, yet he found\\nthat Aspic “was not held to the[se] strict provisions” based\\non Aspic “conduct[ing] its business practices in a manner\\nnormal to Afghanistan.” This finding alone—if based on\\npast practice—would be insufficient for us to vacate an\\narbitral award.\\n\\n In arriving at that conclusion, however, the Arbitrator\\nevaded the pass-through provisions by determining that\\n\\f12 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\\n\\nthere was not a true “meeting of the minds” when the parties\\nformed the Subcontracts because “the normal business\\npractices and customs of subcontractors in Afghanistan were\\nmore ‘primitive’ than those of U.S. subcontractors,” and\\nECC could not expect Aspic to “strictly conform” to United\\nStates governmental contracting regulations. The Arbitrator\\nthen alluded to Aspic’s hand-written receipts written in the\\n“native language” and the use of dates from the Islamic\\ncalendar. The Arbitrator found that rejecting Aspic’s\\nsupporting materials because they were not translated into\\nEnglish and the Gregorian calendar “would result in a\\nforfeiture and unfairness in the resolution of the Aspic\\nclaims.”\\n\\n These facts demonstrate that despite finding that the\\nSubcontracts plainly required Aspic to comply with the FAR\\nsections, the Arbitrator reasoned that the expectation of a\\nseemingly less sophisticated contractor complying with\\nthese regulations was unreasonable. Thus, the Arbitrator did\\nnot base his conclusion upon Aspic and ECC’s actual past\\nprocedures, but upon his rationalization that to enforce the\\nFAR clauses on Aspic would be unjust. This an arbitrator\\nmay not do.\\n\\n By concluding that Aspic need not comply with the FAR\\nrequirements, the Arbitrator exceeded his authority and\\nfailed to draw the essence of the Award from the\\nSubcontracts. The Award disregarded specific provisions of\\nthe plain text in an effort to prevent what the Arbitrator\\ndeemed an unfair result. Such an award is “irrational.”\\n\\n Our conclusion is further supported by the fact that\\nneither party argued that the FAR provisions did not apply\\nin their arbitration briefs. To the contrary, substantial\\nportions of the parties’ briefs emphasize the other’s failure\\nto comply with certain FAR sections: Aspic decried ECC’s\\n\\f ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 13\\n\\nviolation of its duty to settle set forth in FAR § 49.108-3, and\\nECC contended that Aspic failed to properly present its\\nsettlement costs to ECC pursuant to FAR § 52.249-2.\\n\\n We observe that it is a serious matter when an arbitral\\naward determines that a (sub)contractor need not comply\\nwith the federal contracting regulations when no past\\npractices demonstrate variation from those requirements.\\nThese regulations, while undoubtedly extensive, permit the\\ngovernment to maintain fairly uniform contracting standards\\nin the many contracts it enters into with parties located in the\\nUnited States and around the world. See 48 C.F.R. § 1.101\\n(“The [FAR] System is established for the codification and\\npublication of uniform policies and procedures for\\nacquisition by all executive agencies.”). To allow\\ncontractors and subcontractors, foreign or domestic, to evade\\nthe FAR provisions because a subcontractor was too\\nunsophisticated or inexperienced to fully understand them\\nwould potentially cripple the government’s ability to\\ncontract with private entities, and would violate controlling\\nfederal law.\\n\\n CONCLUSION\\n\\n We have become an arbitration nation. An increasing\\nnumber of private disputes are resolved not by courts, but by\\narbitrators. Although courts play a limited role in reviewing\\narbitral awards, our duty remains an important one. When\\nan arbitrator disregards the plain text of a contract without\\nlegal justification simply to reach a result that he believes is\\njust, we must intervene.\\n\\n The Arbitrator’s Award in this case was “irrational”\\nbecause it directly conflicted with the Subcontracts’ FAR-\\nrelated provisions, without evidence of the parties’ past\\npractices deviating from them, in order to achieve a desired\\n\\f14 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\\n\\noutcome. We therefore affirm the district court’s vacatur of\\nthe Award. Because we affirm the district court, we also\\nconclude that Aspic’s argument that the Arbitrator erred in\\nfailing to award it attorneys’ fees and arbitral costs is moot.\\n\\n AFFIRMED.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4362448/\", \"author_raw\": \"M. SMITH, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"MILAN D SMITH JR"},"judge2":{"kind":"string","value":"JACQUELINE H NGUYEN"},"judge3":{"kind":"string","value":"JANE A RESTANI"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"MILAN D SMITH JR\": \", Circuit\", \"JACQUELINE H NGUYEN\": \", Circuit\", \"JANE A RESTANI\": \",\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4585195/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Aspic Engineering and Constr. v. Ecc Centcom Constructors LLC\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-28\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n ASPIC ENGINEERING AND No. 17-16510\n CONSTRUCTION COMPANY,\n Plaintiff-Appellant, D.C. No.\n 4:17-cv-00224-\n v. YGR\n\n ECC CENTCOM CONSTRUCTORS\n LLC; ECC INTERNATIONAL LLC, OPINION\n Defendants-Appellees.\n\n\n\n Appeal from the United States District Court\n for the Northern District of California\n Yvonne Gonzalez Rogers, District Judge, Presiding\n\n Argued and Submitted December 17, 2018\n San Francisco, California\n\n Filed January 28, 2019\n\n Before: MILAN D. SMITH, JR. and JACQUELINE H.\n NGUYEN, Circuit Judges, and JANE A. RESTANI, *\n Judge.\n\n Opinion by Judge Milan D. Smith, Jr.\n\n *\n The Honorable Jane A. Restani, Judge for the United States Court\nof International Trade, sitting by designation.\n\f2 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\n\n SUMMARY **\n\n\n Arbitration\n\n The panel affirmed the district court’s order vacating\nunder the Federal Arbitration Act an arbitration award\nconcerning the termination for convenience of two\nsubcontracts for the construction of buildings and facilities\nin Afghanistan.\n\n The subcontracts were in support of defendants’ prime\ncontracts with the U.S. Army Corps of Engineers. The\nsubcontracts incorporated by reference Federal Acquisition\nRegulation (“FAR”) clauses governing termination for\nconvenience, and they contained a clause mandating that\nplaintiff, a local company, owed to defendants the same\nobligations that defendants owed to the U.S. government.\nVoiding parts of the subcontracts, the arbitrator awarded\nplaintiff some of its claimed costs despite plaintiff’s failure\nto comply with FAR requirements.\n\n The panel held that, in finding that plaintiff need not\ncomply with the FAR provisions, the arbitrator exceeded his\npowers and failed to draw the essence of the award from the\nsubcontracts. The arbitrator’s award was “irrational”\nbecause he improperly based his conclusion not on past\npractices, but on his rationalization that to enforce the FAR\nclauses on plaintiff would be unjust.\n\n\n\n\n **\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 3\n\n COUNSEL\n\nWalt Pennington (argued), Pennington Law Firm, San\nDiego, California, for Plaintiff-Appellant.\n\nJoseph G. Martinez (argued), Dentons US LLP, Denver,\nColorado; Andrew S. Azarmi, Dentons US LLP, San\nFrancisco, California; for Defendants-Appellees.\n\n\n OPINION\n\nM. SMITH, Circuit Judge:\n\n In this opinion, we review the award to Aspic\nEngineering and Construction Company (Aspic) following\narbitration between Aspic and ECC Centcom Constructors,\nLLC and ECC International, LLC (together, ECC). ECC and\nAspic entered into arbitration to resolve how much money\nECC owed Aspic after ECC terminated for convenience two\nsubcontracts it had awarded to Aspic. The arbitrator\nawarded Aspic just over $1 million, but ECC sought\nsuccessfully to vacate the award in the district court. We\naffirm the district court’s vacation of the arbitration award.\n\n FACTUAL AND PROCEDURAL BACKGROUND\n\nI. The Subcontracts\n\n In support of its prime contracts with the United States\nArmy Corps of Engineers (USACE), ECC awarded Aspic\ntwo subcontracts for the construction of various buildings\nand facilities in Afghanistan. The first was to be performed\nin Badghis province (the Badghis Subcontract). The second\nrequired the construction of a training facility in Sheberghan\nprovince (Sheberghan Subcontract).\n\f4 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\n\n The Badghis Subcontract and the Shebergan Subcontract\n(together, the Subcontracts) contained terms and conditions\n“applicable to all U.S. Government subcontracts.”\nSpecifically, the Subcontracts incorporated many Federal\nAcquisition Regulation (FAR) 1 clauses by reference, or in\nhaec verba. These clauses included FAR 49.2 through 49.6,\nwhich govern termination for convenience. The\nSubcontracts also contained the following clause mandating\nthat Aspic owe to ECC the same obligations that ECC owed\nto the United States government, as set forth in the FAR\nclauses: “The obligations of [ECC] to the Government as\nprovided in said clauses shall be deemed to be the\nobligations of Subcontractor to [ECC].”\n\n USACE eventually terminated ECC’s prime contract for\nconvenience on the Badghis project. Days later, ECC\nnotified Aspic that it was terminating the Badghis\nSubcontract for convenience. Understandably, Aspic sought\npayment for its expenses. On February 9, 2014, Aspic\nsubmitted its termination settlement proposal for the\nBadghis project to ECC. After review, ECC informed Aspic\nthat the corroborative documents it had submitted in support\nof its settlement proposal were inadequate, and Aspic\nadmitted it did not have many of the required materials.\nNevertheless, ECC eventually submitted its termination\nsettlement proposal to USACE, and included Aspic’s claim\nfor $229,915 in termination costs within that proposal.\n\n Upon receipt of the termination settlement proposal,\nUSACE notified ECC that it would not pay any of ECC’s\nsubcontractor termination costs—including the money\nAspic claimed it was owed—until the Defense Contract\n\n 1\n Title 48 of the Code of Federal Regulations contains the FAR\nregulations.\n\f ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 5\n\nAudit Agency had conducted an audit. Following that audit,\nUSACE informed ECC that it had overpaid Aspic for its\nperformance under the Badghis Subcontract. In light of that\ndetermination, USACE refused to pay any of Aspic’s\nclaimed termination costs.\n\n USACE also terminated ECC’s contract for the\nSheberghan project for convenience. Two days later, ECC\nterminated the Sheberghan Subcontract for convenience.\n\n Aspic again submitted a termination settlement proposal\nto ECC, this time requesting $1,032,462. ECC, however, did\nnot present these claimed costs to the USACE. USACE\neventually issued a no-cost termination settlement between\nUSACE and ECC—a settlement in which USACE claimed\nthat the money previously paid to ECC and its\nsubcontractors, including Aspic, constituted adequate\ncompensation.\n\nII. Prior Proceedings\n\n Aspic believed it deserved more money for its efforts\nunder the Subcontracts. In August 2015, it submitted a\nsettlement demand for $652,000 on the Sheberghan\nSubcontract. ECC refused to pay, so Aspic filed for\narbitration. Aspic again tried to settle the dispute—issuing\nsettlement offers of $830,000 to ECC Centcom Constructors\nand $150,000 to ECC International—but ECC did not accept\neither of these offers.\n\n In accordance with the Subcontracts, the parties\nproceeded to arbitration. 2 The Arbitrator issued a Partial\n 2\n Part A “General Terms and Conditions” of the Subcontracts\ncontained provisions requiring arbitration for disputes arising from the\ncontracts and the application of California law.\n\f6 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\n\nFinal Award, awarding Aspic $1,072,520.90 and holding\nECC Centcom Constructors and ECC International jointly\nand severally liable for the total amount. Aspic then sought\nattorneys’ fees and costs. Contemporaneously, ECC moved\nto reduce the Partial Final Award by Aspic’s waived\ndamages, and opposed Aspic’s request by arguing that each\nparty ought to bear its own attorneys’ fees. The Arbitrator’s\nFinal Award (the Award) incorporated the Partial Final\nAward, denied attorneys’ fees and costs, and awarded Aspic\nhalf of the administrative fees and expenses.\n\n Aspic filed a petition in the Superior Court for San Mateo\nCounty, California seeking to confirm the Award. Aspic\nalso sought to reverse the Arbitrator’s determination that it\nwas not entitled to attorneys’ fees. The Superior Court\naffirmed the Award and modified it to award Aspic\nattorneys’ fees of $435,840, plus all of its arbitration costs.\nThe Superior Court then denied ECC’s ex parte application\nto vacate its prior order.\n\n ECC removed the case to the Northern District of\nCalifornia. Before the district court, ECC renewed its effort\nto vacate the Award and the Superior Court’s judgment.\nAspic did not oppose ECC’s motion to vacate the Superior\nCourt’s judgment, and the district court granted that motion.\n\n The district court then held a hearing on the parties’\nmotions to vacate the Award and to confirm and correct the\nAward. Following the hearing, the district court vacated the\nAward. The court held that the Award conflicted with the\ncontract because the arbitrator “voided and reconstructed\nparts of the Subcontracts based on a belief that the\nSubcontracts did not reflect a ‘true meetings [sic] of the\nminds.’” Aspic moved for reconsideration, which the court\ndenied. Aspic then timely appealed.\n\f ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 7\n\n JURISDICTION AND STANDARD OF REVIEW\n\n We have jurisdiction pursuant to 9 U.S.C. § 16 and\n28 U.S.C. § 1291. The Supreme Court has held that review\nof a district court’s decision confirming an arbitration award\n“should proceed like review of any other district court\ndecision finding an agreement between two parties, e.g.,\naccepting findings of fact that are not ‘clearly erroneous’ but\ndeciding questions of law de novo.” First Options of\nChicago, Inc. v. Kaplan, 514 U.S. 938, 948 (1995). We\napply the same standard of review where the district court\nvacates an arbitration award. See Aramark Facility Servs. v.\nServ. Emp’s Int’l Union, Local 1877, AFL CIO, 530 F.3d\n817, 822 (9th Cir. 2008) (applying de novo review for legal\nrulings and clear error for findings of fact).\n\n ANALYSIS\n\n Aspic offers a litany of reasons why the Arbitrator’s\nAward was rational. However, that argument ignores our\nlimited powers when reviewing arbitrated cases. Pursuant to\nthe Federal Arbitration Act (FAA), we “must” confirm an\narbitration award unless we vacate, modify, or correct the\naward as prescribed in 9 U.S.C. §§ 10 and 11. Bosack v.\nSoward, 586 F.3d 1096, 1102 (9th Cir. 2009). “Neither\nerroneous legal conclusions nor unsubstantiated factual\nfindings justify federal court review” of an arbitral award\nunder the FAA. Id. Review of an arbitration award is “both\nlimited and highly deferential.” Comedy Club, Inc. v.\nImprov W. Assocs., 553 F.3d 1277, 1288 (9th Cir. 2009)\n(quoting Poweragent Inc. v. Elec. Data Sys. Corp., 358 F.3d\n1187, 1193 (9th Cir. 2004)).\n\n We may vacate an arbitration award where, among other\nreasons, “the arbitrators exceeded their powers, or so\nimperfectly executed them that a mutual, final, and definite\n\f8 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\n\naward upon the subject matter submitted was not made.”\n9 U.S.C. § 10. We have held that arbitrators “exceed their\npowers” when the award is “completely irrational” or\nexhibits a “manifest disregard of the law.” Kyocera Corp. v.\nPrudential-Bache Trade Servs., Inc., 341 F.3d 987, 997 (9th\nCir. 2003) (internal citations omitted).\n\n An award is completely irrational “only where the\narbitration decision fails to draw its essence from the\nagreement.” Comedy Club, 553 F.3d at 1288 (quoting\nHoffman v. Cargill Inc., 236 F.3d 458, 461–62 (8th Cir.\n2001)). An arbitration award “draws its essence from the\nagreement” if the award is derived from the agreement,\nviewed “in light of the agreement’s language and context, as\nwell as other indications of the parties’ intentions.” Bosack,\n586 F.3d at 1106 (quoting McGrann v. First Albany Corp.,\n424 F.3d 743, 749 (8th Cir. 2005)). Under this standard of\nreview, we decide “only whether the [arbitrator’s] decision\n‘draws its essence’ from the contract,” not the “rightness or\nwrongness” of the arbitrator’s contract interpretation. Id.\n(quoting Pacific Reinsurance Mgmt. Corp. v. Ohio\nReinsurance Corp., 935 F.2d 1019, 1024 (9th Cir. 1991)).\n\n The question in this appeal, therefore, is not whether the\nArbitrator’s Award was reasonable overall, but whether the\nArbitrator exceeded his powers in finding that Aspic need\nnot comply with the FAR provisions. We hold that he did.\n\n In this case, the Arbitrator held, in relevant part:\n\n The parties entered into two lengthy\n subcontract agreements for the two projects\n which were prepared by ECC and presented\n to ASPIC. Each subcontract included very\n detailed provisions relating to Federal\n regulations governing the work as well as\n\fASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 9\n\n pass through and ‘Pay when/if Paid’ clauses.\n The subcontracts were somewhat onerous as\n to ASPIC and were clearly drafted to give\n every advantage to ECC. In light of the fact\n that the ASPIC was a local Afghanistan\n subcontractor that had some experience with\n government contracting but not nearly as\n extensive as that of ECC, and in view of the\n fact that the normal business practices and\n customs of subcontractors in Afghanistan\n were more ‘primitive’ than those of U.S[.]\n subcontractors experienced with U.S[.]\n Government work, it was not reasonable to\n expect that Afghanistan subcontractors\n would be able to conform to the strict and\n detailed requirements of general contractors\n on U.S. Federal projects. Notwithstanding\n that expectation, ECC prepared its\n subcontract agreements to require the same\n level of precision and adherence to Federal\n procedures from ASPIC as ECC had toward\n the USACE through the pass through\n provisions of the agreements.\n\n It was not reasonable that when the parties\n entered into the subcontract agreements, they\n both had the same expectations as to the\n performance of the agreements. ECC could\n not expect that ASPIC would be capable of\n modifying their local business practices to\n completely and strictly conform to the US\n governmental contracting practices that were\n normal to ECC. There was not a true meeting\n of the minds when the subcontract\n agreements were entered. Hence, ASPIC was\n\f10 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\n\n not held to the strict provisions of the\n subcontract agreements that ECC had to the\n USACE. This arbitration demonstrated that\n ASPIC conducted its business practices in a\n manner normal to Afghanistan which was\n clearly not the same as a U[.]S[.]\n subcontractor working on a Federal project in\n the U.S. (emphasis added).\n\n Aspic contends that vacatur of the Award is not\nwarranted because the Arbitrator did not exceed his powers\nin holding that ECC never intended for Aspic to conform\nfully to the Subcontracts’ terms. Conversely, ECC argues\nthat the Arbitrator erred by explicitly disregarding the\nSubcontracts’ requirements. The crux of this dispute,\ntherefore, is whether the Arbitrator improperly strayed from\nthe plain text of the contract.\n\n An arbitrator may interpret the contract “in light of . . .\nindications of the parties’ intentions” and find that the\nparties’ conduct modified the text of a contract. See Bosack,\n586 F.3d at 1106. In Metzler Contracting Co. v. Stephens,\nfor example, we held that an arbitrator acted within his\npowers when he concluded that the parties, “through their\nacts and conduct,” had waived a portion of the underlying\ncost-plus contract. 479 F. App’x 783, 784 (9th Cir. 2012).\nWe found “plausible” the arbitrator’s interpretation of the\ncontract despite the contract’s provision limiting the parties’\nability to waive contract provisions. Id. at 784–85.\n\n What an arbitrator may not do, however, is disregard\ncontract provisions to achieve a desired result. In Pacific\nMotor Trucking Co. v. Automotive Machinists Union, the\narbitrator ruled that the company could not demote an\nemployee from the Working Foreman position\n\f ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 11\n\nnotwithstanding the fact that the contract granted the\ncompany discretion over the position. 702 F.2d 176, 177\n(9th Cir. 1983). We noted that while the arbitrator attempted\nto “justify the award on the basis of past practice . . . there\nwas no practice indicating that the employer lacked\ndiscretion over maintaining the [Working Foreman]\nposition.” Id. Thus, we held that the district court properly\nvacated the award because the arbitrator “dispense[d] his\nown brand of industrial justice” by “disregard[ing] a specific\ncontract provision to correct what he perceived as an\ninjustice.” Id. (quoting United Steelworkers of Am. v.\nEnterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960)).\n\n Here, the Subcontracts incorporate numerous FAR\nprovisions, including those that govern termination for\nconvenience and the settlement procedure. FAR § 52.249-2\nsets forth the procedure to be used in the event of termination\nfor convenience. 48 C.F.R. § 52.249-2. FAR § 49.108-3\nrequires that each settlement be “supported by accounting\ndata and other information sufficient for adequate review by\nthe Government,” and “in general conformity with the\npolicies and principles . . . in this subpart and subparts 49.2\nor 49.3.” 48 C.F.R. § 49.108-3.\n\n As the district court determined, the Award “conflicts\ndirectly with the [Sub]contract[s].” The Arbitrator\nrecognized that the Subcontracts’ pass-through provisions\nobligated Aspic to meet the FAR requirements, yet he found\nthat Aspic “was not held to the[se] strict provisions” based\non Aspic “conduct[ing] its business practices in a manner\nnormal to Afghanistan.” This finding alone—if based on\npast practice—would be insufficient for us to vacate an\narbitral award.\n\n In arriving at that conclusion, however, the Arbitrator\nevaded the pass-through provisions by determining that\n\f12 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\n\nthere was not a true “meeting of the minds” when the parties\nformed the Subcontracts because “the normal business\npractices and customs of subcontractors in Afghanistan were\nmore ‘primitive’ than those of U.S. subcontractors,” and\nECC could not expect Aspic to “strictly conform” to United\nStates governmental contracting regulations. The Arbitrator\nthen alluded to Aspic’s hand-written receipts written in the\n“native language” and the use of dates from the Islamic\ncalendar. The Arbitrator found that rejecting Aspic’s\nsupporting materials because they were not translated into\nEnglish and the Gregorian calendar “would result in a\nforfeiture and unfairness in the resolution of the Aspic\nclaims.”\n\n These facts demonstrate that despite finding that the\nSubcontracts plainly required Aspic to comply with the FAR\nsections, the Arbitrator reasoned that the expectation of a\nseemingly less sophisticated contractor complying with\nthese regulations was unreasonable. Thus, the Arbitrator did\nnot base his conclusion upon Aspic and ECC’s actual past\nprocedures, but upon his rationalization that to enforce the\nFAR clauses on Aspic would be unjust. This an arbitrator\nmay not do.\n\n By concluding that Aspic need not comply with the FAR\nrequirements, the Arbitrator exceeded his authority and\nfailed to draw the essence of the Award from the\nSubcontracts. The Award disregarded specific provisions of\nthe plain text in an effort to prevent what the Arbitrator\ndeemed an unfair result. Such an award is “irrational.”\n\n Our conclusion is further supported by the fact that\nneither party argued that the FAR provisions did not apply\nin their arbitration briefs. To the contrary, substantial\nportions of the parties’ briefs emphasize the other’s failure\nto comply with certain FAR sections: Aspic decried ECC’s\n\f ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 13\n\nviolation of its duty to settle set forth in FAR § 49.108-3, and\nECC contended that Aspic failed to properly present its\nsettlement costs to ECC pursuant to FAR § 52.249-2.\n\n We observe that it is a serious matter when an arbitral\naward determines that a (sub)contractor need not comply\nwith the federal contracting regulations when no past\npractices demonstrate variation from those requirements.\nThese regulations, while undoubtedly extensive, permit the\ngovernment to maintain fairly uniform contracting standards\nin the many contracts it enters into with parties located in the\nUnited States and around the world. See 48 C.F.R. § 1.101\n(“The [FAR] System is established for the codification and\npublication of uniform policies and procedures for\nacquisition by all executive agencies.”). To allow\ncontractors and subcontractors, foreign or domestic, to evade\nthe FAR provisions because a subcontractor was too\nunsophisticated or inexperienced to fully understand them\nwould potentially cripple the government’s ability to\ncontract with private entities, and would violate controlling\nfederal law.\n\n CONCLUSION\n\n We have become an arbitration nation. An increasing\nnumber of private disputes are resolved not by courts, but by\narbitrators. Although courts play a limited role in reviewing\narbitral awards, our duty remains an important one. When\nan arbitrator disregards the plain text of a contract without\nlegal justification simply to reach a result that he believes is\njust, we must intervene.\n\n The Arbitrator’s Award in this case was “irrational”\nbecause it directly conflicted with the Subcontracts’ FAR-\nrelated provisions, without evidence of the parties’ past\npractices deviating from them, in order to achieve a desired\n\f14 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\n\noutcome. We therefore affirm the district court’s vacatur of\nthe Award. Because we affirm the district court, we also\nconclude that Aspic’s argument that the Arbitrator erred in\nfailing to award it attorneys’ fees and arbitral costs is moot.\n\n AFFIRMED.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Aspic Engineering and Constr. v. Ecc Centcom Constructors LLC\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-01-28\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\n ASPIC ENGINEERING AND No. 17-16510\\n CONSTRUCTION COMPANY,\\n Plaintiff-Appellant, D.C. No.\\n 4:17-cv-00224-\\n v. YGR\\n\\n ECC CENTCOM CONSTRUCTORS\\n LLC; ECC INTERNATIONAL LLC, OPINION\\n Defendants-Appellees.\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of California\\n Yvonne Gonzalez Rogers, District Judge, Presiding\\n\\n Argued and Submitted December 17, 2018\\n San Francisco, California\\n\\n Filed January 28, 2019\\n\\n Before: MILAN D. SMITH, JR. and JACQUELINE H.\\n NGUYEN, Circuit Judges, and JANE A. RESTANI, *\\n Judge.\\n\\n Opinion by Judge Milan D. Smith, Jr.\\n\\n *\\n The Honorable Jane A. Restani, Judge for the United States Court\\nof International Trade, sitting by designation.\\n\\f2 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\\n\\n SUMMARY **\\n\\n\\n Arbitration\\n\\n The panel affirmed the district court’s order vacating\\nunder the Federal Arbitration Act an arbitration award\\nconcerning the termination for convenience of two\\nsubcontracts for the construction of buildings and facilities\\nin Afghanistan.\\n\\n The subcontracts were in support of defendants’ prime\\ncontracts with the U.S. Army Corps of Engineers. The\\nsubcontracts incorporated by reference Federal Acquisition\\nRegulation (“FAR”) clauses governing termination for\\nconvenience, and they contained a clause mandating that\\nplaintiff, a local company, owed to defendants the same\\nobligations that defendants owed to the U.S. government.\\nVoiding parts of the subcontracts, the arbitrator awarded\\nplaintiff some of its claimed costs despite plaintiff’s failure\\nto comply with FAR requirements.\\n\\n The panel held that, in finding that plaintiff need not\\ncomply with the FAR provisions, the arbitrator exceeded his\\npowers and failed to draw the essence of the award from the\\nsubcontracts. The arbitrator’s award was “irrational”\\nbecause he improperly based his conclusion not on past\\npractices, but on his rationalization that to enforce the FAR\\nclauses on plaintiff would be unjust.\\n\\n\\n\\n\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\f ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 3\\n\\n COUNSEL\\n\\nWalt Pennington (argued), Pennington Law Firm, San\\nDiego, California, for Plaintiff-Appellant.\\n\\nJoseph G. Martinez (argued), Dentons US LLP, Denver,\\nColorado; Andrew S. Azarmi, Dentons US LLP, San\\nFrancisco, California; for Defendants-Appellees.\\n\\n\\n OPINION\\n\\nM. SMITH, Circuit Judge:\\n\\n In this opinion, we review the award to Aspic\\nEngineering and Construction Company (Aspic) following\\narbitration between Aspic and ECC Centcom Constructors,\\nLLC and ECC International, LLC (together, ECC). ECC and\\nAspic entered into arbitration to resolve how much money\\nECC owed Aspic after ECC terminated for convenience two\\nsubcontracts it had awarded to Aspic. The arbitrator\\nawarded Aspic just over $1 million, but ECC sought\\nsuccessfully to vacate the award in the district court. We\\naffirm the district court’s vacation of the arbitration award.\\n\\n FACTUAL AND PROCEDURAL BACKGROUND\\n\\nI. The Subcontracts\\n\\n In support of its prime contracts with the United States\\nArmy Corps of Engineers (USACE), ECC awarded Aspic\\ntwo subcontracts for the construction of various buildings\\nand facilities in Afghanistan. The first was to be performed\\nin Badghis province (the Badghis Subcontract). The second\\nrequired the construction of a training facility in Sheberghan\\nprovince (Sheberghan Subcontract).\\n\\f4 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\\n\\n The Badghis Subcontract and the Shebergan Subcontract\\n(together, the Subcontracts) contained terms and conditions\\n“applicable to all U.S. Government subcontracts.”\\nSpecifically, the Subcontracts incorporated many Federal\\nAcquisition Regulation (FAR) 1 clauses by reference, or in\\nhaec verba. These clauses included FAR 49.2 through 49.6,\\nwhich govern termination for convenience. The\\nSubcontracts also contained the following clause mandating\\nthat Aspic owe to ECC the same obligations that ECC owed\\nto the United States government, as set forth in the FAR\\nclauses: “The obligations of [ECC] to the Government as\\nprovided in said clauses shall be deemed to be the\\nobligations of Subcontractor to [ECC].”\\n\\n USACE eventually terminated ECC’s prime contract for\\nconvenience on the Badghis project. Days later, ECC\\nnotified Aspic that it was terminating the Badghis\\nSubcontract for convenience. Understandably, Aspic sought\\npayment for its expenses. On February 9, 2014, Aspic\\nsubmitted its termination settlement proposal for the\\nBadghis project to ECC. After review, ECC informed Aspic\\nthat the corroborative documents it had submitted in support\\nof its settlement proposal were inadequate, and Aspic\\nadmitted it did not have many of the required materials.\\nNevertheless, ECC eventually submitted its termination\\nsettlement proposal to USACE, and included Aspic’s claim\\nfor $229,915 in termination costs within that proposal.\\n\\n Upon receipt of the termination settlement proposal,\\nUSACE notified ECC that it would not pay any of ECC’s\\nsubcontractor termination costs—including the money\\nAspic claimed it was owed—until the Defense Contract\\n\\n 1\\n Title 48 of the Code of Federal Regulations contains the FAR\\nregulations.\\n\\f ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 5\\n\\nAudit Agency had conducted an audit. Following that audit,\\nUSACE informed ECC that it had overpaid Aspic for its\\nperformance under the Badghis Subcontract. In light of that\\ndetermination, USACE refused to pay any of Aspic’s\\nclaimed termination costs.\\n\\n USACE also terminated ECC’s contract for the\\nSheberghan project for convenience. Two days later, ECC\\nterminated the Sheberghan Subcontract for convenience.\\n\\n Aspic again submitted a termination settlement proposal\\nto ECC, this time requesting $1,032,462. ECC, however, did\\nnot present these claimed costs to the USACE. USACE\\neventually issued a no-cost termination settlement between\\nUSACE and ECC—a settlement in which USACE claimed\\nthat the money previously paid to ECC and its\\nsubcontractors, including Aspic, constituted adequate\\ncompensation.\\n\\nII. Prior Proceedings\\n\\n Aspic believed it deserved more money for its efforts\\nunder the Subcontracts. In August 2015, it submitted a\\nsettlement demand for $652,000 on the Sheberghan\\nSubcontract. ECC refused to pay, so Aspic filed for\\narbitration. Aspic again tried to settle the dispute—issuing\\nsettlement offers of $830,000 to ECC Centcom Constructors\\nand $150,000 to ECC International—but ECC did not accept\\neither of these offers.\\n\\n In accordance with the Subcontracts, the parties\\nproceeded to arbitration. 2 The Arbitrator issued a Partial\\n 2\\n Part A “General Terms and Conditions” of the Subcontracts\\ncontained provisions requiring arbitration for disputes arising from the\\ncontracts and the application of California law.\\n\\f6 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\\n\\nFinal Award, awarding Aspic $1,072,520.90 and holding\\nECC Centcom Constructors and ECC International jointly\\nand severally liable for the total amount. Aspic then sought\\nattorneys’ fees and costs. Contemporaneously, ECC moved\\nto reduce the Partial Final Award by Aspic’s waived\\ndamages, and opposed Aspic’s request by arguing that each\\nparty ought to bear its own attorneys’ fees. The Arbitrator’s\\nFinal Award (the Award) incorporated the Partial Final\\nAward, denied attorneys’ fees and costs, and awarded Aspic\\nhalf of the administrative fees and expenses.\\n\\n Aspic filed a petition in the Superior Court for San Mateo\\nCounty, California seeking to confirm the Award. Aspic\\nalso sought to reverse the Arbitrator’s determination that it\\nwas not entitled to attorneys’ fees. The Superior Court\\naffirmed the Award and modified it to award Aspic\\nattorneys’ fees of $435,840, plus all of its arbitration costs.\\nThe Superior Court then denied ECC’s ex parte application\\nto vacate its prior order.\\n\\n ECC removed the case to the Northern District of\\nCalifornia. Before the district court, ECC renewed its effort\\nto vacate the Award and the Superior Court’s judgment.\\nAspic did not oppose ECC’s motion to vacate the Superior\\nCourt’s judgment, and the district court granted that motion.\\n\\n The district court then held a hearing on the parties’\\nmotions to vacate the Award and to confirm and correct the\\nAward. Following the hearing, the district court vacated the\\nAward. The court held that the Award conflicted with the\\ncontract because the arbitrator “voided and reconstructed\\nparts of the Subcontracts based on a belief that the\\nSubcontracts did not reflect a ‘true meetings [sic] of the\\nminds.’” Aspic moved for reconsideration, which the court\\ndenied. Aspic then timely appealed.\\n\\f ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 7\\n\\n JURISDICTION AND STANDARD OF REVIEW\\n\\n We have jurisdiction pursuant to 9 U.S.C. § 16 and\\n28 U.S.C. § 1291. The Supreme Court has held that review\\nof a district court’s decision confirming an arbitration award\\n“should proceed like review of any other district court\\ndecision finding an agreement between two parties, e.g.,\\naccepting findings of fact that are not ‘clearly erroneous’ but\\ndeciding questions of law de novo.” First Options of\\nChicago, Inc. v. Kaplan, 514 U.S. 938, 948 (1995). We\\napply the same standard of review where the district court\\nvacates an arbitration award. See Aramark Facility Servs. v.\\nServ. Emp’s Int’l Union, Local 1877, AFL CIO, 530 F.3d\\n817, 822 (9th Cir. 2008) (applying de novo review for legal\\nrulings and clear error for findings of fact).\\n\\n ANALYSIS\\n\\n Aspic offers a litany of reasons why the Arbitrator’s\\nAward was rational. However, that argument ignores our\\nlimited powers when reviewing arbitrated cases. Pursuant to\\nthe Federal Arbitration Act (FAA), we “must” confirm an\\narbitration award unless we vacate, modify, or correct the\\naward as prescribed in 9 U.S.C. §§ 10 and 11. Bosack v.\\nSoward, 586 F.3d 1096, 1102 (9th Cir. 2009). “Neither\\nerroneous legal conclusions nor unsubstantiated factual\\nfindings justify federal court review” of an arbitral award\\nunder the FAA. Id. Review of an arbitration award is “both\\nlimited and highly deferential.” Comedy Club, Inc. v.\\nImprov W. Assocs., 553 F.3d 1277, 1288 (9th Cir. 2009)\\n(quoting Poweragent Inc. v. Elec. Data Sys. Corp., 358 F.3d\\n1187, 1193 (9th Cir. 2004)).\\n\\n We may vacate an arbitration award where, among other\\nreasons, “the arbitrators exceeded their powers, or so\\nimperfectly executed them that a mutual, final, and definite\\n\\f8 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\\n\\naward upon the subject matter submitted was not made.”\\n9 U.S.C. § 10. We have held that arbitrators “exceed their\\npowers” when the award is “completely irrational” or\\nexhibits a “manifest disregard of the law.” Kyocera Corp. v.\\nPrudential-Bache Trade Servs., Inc., 341 F.3d 987, 997 (9th\\nCir. 2003) (internal citations omitted).\\n\\n An award is completely irrational “only where the\\narbitration decision fails to draw its essence from the\\nagreement.” Comedy Club, 553 F.3d at 1288 (quoting\\nHoffman v. Cargill Inc., 236 F.3d 458, 461–62 (8th Cir.\\n2001)). An arbitration award “draws its essence from the\\nagreement” if the award is derived from the agreement,\\nviewed “in light of the agreement’s language and context, as\\nwell as other indications of the parties’ intentions.” Bosack,\\n586 F.3d at 1106 (quoting McGrann v. First Albany Corp.,\\n424 F.3d 743, 749 (8th Cir. 2005)). Under this standard of\\nreview, we decide “only whether the [arbitrator’s] decision\\n‘draws its essence’ from the contract,” not the “rightness or\\nwrongness” of the arbitrator’s contract interpretation. Id.\\n(quoting Pacific Reinsurance Mgmt. Corp. v. Ohio\\nReinsurance Corp., 935 F.2d 1019, 1024 (9th Cir. 1991)).\\n\\n The question in this appeal, therefore, is not whether the\\nArbitrator’s Award was reasonable overall, but whether the\\nArbitrator exceeded his powers in finding that Aspic need\\nnot comply with the FAR provisions. We hold that he did.\\n\\n In this case, the Arbitrator held, in relevant part:\\n\\n The parties entered into two lengthy\\n subcontract agreements for the two projects\\n which were prepared by ECC and presented\\n to ASPIC. Each subcontract included very\\n detailed provisions relating to Federal\\n regulations governing the work as well as\\n\\fASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 9\\n\\n pass through and ‘Pay when/if Paid’ clauses.\\n The subcontracts were somewhat onerous as\\n to ASPIC and were clearly drafted to give\\n every advantage to ECC. In light of the fact\\n that the ASPIC was a local Afghanistan\\n subcontractor that had some experience with\\n government contracting but not nearly as\\n extensive as that of ECC, and in view of the\\n fact that the normal business practices and\\n customs of subcontractors in Afghanistan\\n were more ‘primitive’ than those of U.S[.]\\n subcontractors experienced with U.S[.]\\n Government work, it was not reasonable to\\n expect that Afghanistan subcontractors\\n would be able to conform to the strict and\\n detailed requirements of general contractors\\n on U.S. Federal projects. Notwithstanding\\n that expectation, ECC prepared its\\n subcontract agreements to require the same\\n level of precision and adherence to Federal\\n procedures from ASPIC as ECC had toward\\n the USACE through the pass through\\n provisions of the agreements.\\n\\n It was not reasonable that when the parties\\n entered into the subcontract agreements, they\\n both had the same expectations as to the\\n performance of the agreements. ECC could\\n not expect that ASPIC would be capable of\\n modifying their local business practices to\\n completely and strictly conform to the US\\n governmental contracting practices that were\\n normal to ECC. There was not a true meeting\\n of the minds when the subcontract\\n agreements were entered. Hence, ASPIC was\\n\\f10 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\\n\\n not held to the strict provisions of the\\n subcontract agreements that ECC had to the\\n USACE. This arbitration demonstrated that\\n ASPIC conducted its business practices in a\\n manner normal to Afghanistan which was\\n clearly not the same as a U[.]S[.]\\n subcontractor working on a Federal project in\\n the U.S. (emphasis added).\\n\\n Aspic contends that vacatur of the Award is not\\nwarranted because the Arbitrator did not exceed his powers\\nin holding that ECC never intended for Aspic to conform\\nfully to the Subcontracts’ terms. Conversely, ECC argues\\nthat the Arbitrator erred by explicitly disregarding the\\nSubcontracts’ requirements. The crux of this dispute,\\ntherefore, is whether the Arbitrator improperly strayed from\\nthe plain text of the contract.\\n\\n An arbitrator may interpret the contract “in light of . . .\\nindications of the parties’ intentions” and find that the\\nparties’ conduct modified the text of a contract. See Bosack,\\n586 F.3d at 1106. In Metzler Contracting Co. v. Stephens,\\nfor example, we held that an arbitrator acted within his\\npowers when he concluded that the parties, “through their\\nacts and conduct,” had waived a portion of the underlying\\ncost-plus contract. 479 F. App’x 783, 784 (9th Cir. 2012).\\nWe found “plausible” the arbitrator’s interpretation of the\\ncontract despite the contract’s provision limiting the parties’\\nability to waive contract provisions. Id. at 784–85.\\n\\n What an arbitrator may not do, however, is disregard\\ncontract provisions to achieve a desired result. In Pacific\\nMotor Trucking Co. v. Automotive Machinists Union, the\\narbitrator ruled that the company could not demote an\\nemployee from the Working Foreman position\\n\\f ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 11\\n\\nnotwithstanding the fact that the contract granted the\\ncompany discretion over the position. 702 F.2d 176, 177\\n(9th Cir. 1983). We noted that while the arbitrator attempted\\nto “justify the award on the basis of past practice . . . there\\nwas no practice indicating that the employer lacked\\ndiscretion over maintaining the [Working Foreman]\\nposition.” Id. Thus, we held that the district court properly\\nvacated the award because the arbitrator “dispense[d] his\\nown brand of industrial justice” by “disregard[ing] a specific\\ncontract provision to correct what he perceived as an\\ninjustice.” Id. (quoting United Steelworkers of Am. v.\\nEnterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960)).\\n\\n Here, the Subcontracts incorporate numerous FAR\\nprovisions, including those that govern termination for\\nconvenience and the settlement procedure. FAR § 52.249-2\\nsets forth the procedure to be used in the event of termination\\nfor convenience. 48 C.F.R. § 52.249-2. FAR § 49.108-3\\nrequires that each settlement be “supported by accounting\\ndata and other information sufficient for adequate review by\\nthe Government,” and “in general conformity with the\\npolicies and principles . . . in this subpart and subparts 49.2\\nor 49.3.” 48 C.F.R. § 49.108-3.\\n\\n As the district court determined, the Award “conflicts\\ndirectly with the [Sub]contract[s].” The Arbitrator\\nrecognized that the Subcontracts’ pass-through provisions\\nobligated Aspic to meet the FAR requirements, yet he found\\nthat Aspic “was not held to the[se] strict provisions” based\\non Aspic “conduct[ing] its business practices in a manner\\nnormal to Afghanistan.” This finding alone—if based on\\npast practice—would be insufficient for us to vacate an\\narbitral award.\\n\\n In arriving at that conclusion, however, the Arbitrator\\nevaded the pass-through provisions by determining that\\n\\f12 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\\n\\nthere was not a true “meeting of the minds” when the parties\\nformed the Subcontracts because “the normal business\\npractices and customs of subcontractors in Afghanistan were\\nmore ‘primitive’ than those of U.S. subcontractors,” and\\nECC could not expect Aspic to “strictly conform” to United\\nStates governmental contracting regulations. The Arbitrator\\nthen alluded to Aspic’s hand-written receipts written in the\\n“native language” and the use of dates from the Islamic\\ncalendar. The Arbitrator found that rejecting Aspic’s\\nsupporting materials because they were not translated into\\nEnglish and the Gregorian calendar “would result in a\\nforfeiture and unfairness in the resolution of the Aspic\\nclaims.”\\n\\n These facts demonstrate that despite finding that the\\nSubcontracts plainly required Aspic to comply with the FAR\\nsections, the Arbitrator reasoned that the expectation of a\\nseemingly less sophisticated contractor complying with\\nthese regulations was unreasonable. Thus, the Arbitrator did\\nnot base his conclusion upon Aspic and ECC’s actual past\\nprocedures, but upon his rationalization that to enforce the\\nFAR clauses on Aspic would be unjust. This an arbitrator\\nmay not do.\\n\\n By concluding that Aspic need not comply with the FAR\\nrequirements, the Arbitrator exceeded his authority and\\nfailed to draw the essence of the Award from the\\nSubcontracts. The Award disregarded specific provisions of\\nthe plain text in an effort to prevent what the Arbitrator\\ndeemed an unfair result. Such an award is “irrational.”\\n\\n Our conclusion is further supported by the fact that\\nneither party argued that the FAR provisions did not apply\\nin their arbitration briefs. To the contrary, substantial\\nportions of the parties’ briefs emphasize the other’s failure\\nto comply with certain FAR sections: Aspic decried ECC’s\\n\\f ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS 13\\n\\nviolation of its duty to settle set forth in FAR § 49.108-3, and\\nECC contended that Aspic failed to properly present its\\nsettlement costs to ECC pursuant to FAR § 52.249-2.\\n\\n We observe that it is a serious matter when an arbitral\\naward determines that a (sub)contractor need not comply\\nwith the federal contracting regulations when no past\\npractices demonstrate variation from those requirements.\\nThese regulations, while undoubtedly extensive, permit the\\ngovernment to maintain fairly uniform contracting standards\\nin the many contracts it enters into with parties located in the\\nUnited States and around the world. See 48 C.F.R. § 1.101\\n(“The [FAR] System is established for the codification and\\npublication of uniform policies and procedures for\\nacquisition by all executive agencies.”). To allow\\ncontractors and subcontractors, foreign or domestic, to evade\\nthe FAR provisions because a subcontractor was too\\nunsophisticated or inexperienced to fully understand them\\nwould potentially cripple the government’s ability to\\ncontract with private entities, and would violate controlling\\nfederal law.\\n\\n CONCLUSION\\n\\n We have become an arbitration nation. An increasing\\nnumber of private disputes are resolved not by courts, but by\\narbitrators. Although courts play a limited role in reviewing\\narbitral awards, our duty remains an important one. When\\nan arbitrator disregards the plain text of a contract without\\nlegal justification simply to reach a result that he believes is\\njust, we must intervene.\\n\\n The Arbitrator’s Award in this case was “irrational”\\nbecause it directly conflicted with the Subcontracts’ FAR-\\nrelated provisions, without evidence of the parties’ past\\npractices deviating from them, in order to achieve a desired\\n\\f14 ASPIC ENG’G & CONSTR. V. ECC CENTCOM CONSTRUCTORS\\n\\noutcome. We therefore affirm the district court’s vacatur of\\nthe Award. Because we affirm the district court, we also\\nconclude that Aspic’s argument that the Arbitrator erred in\\nfailing to award it attorneys’ fees and arbitral costs is moot.\\n\\n AFFIRMED.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":367,"cells":{"id":{"kind":"number","value":4585457,"string":"4,585,457"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Wiley Gill v. DOJ"},"decision_date":{"kind":"string","value":"2019-01-29"},"docket_number":{"kind":"string","value":"17-16107"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: MILAN D. SMITH, JR. and ANDREW D. HURWITZ, Circuit Judges, and RICHARD K. EATON, * Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"M. SMITH, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"FOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nWILEY GILL; JAMES PRIGOFF; No. 17-16107\\nTARIQ RAZAK; KHALED IBRAHIM;\\nAARON CONKLIN, D.C. No.\\n Plaintiffs-Appellants, 3:14-cv-03120-RS\\n\\n v.\\n OPINION\\nUNITED STATES DEPARTMENT OF\\nJUSTICE; MATTHEW WHITAKER,\\nActing Attorney General;\\nPROGRAM MANAGER -\\nINFORMATION SHARING\\nENVIRONMENT; THE OFFICE OF\\nTHE PROGRAM MANAGER OF THE\\nINFORMATION SHARING\\nENVIRONMENT,\\n Defendants-Appellees.\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of California\\n Richard Seeborg, District Judge, Presiding\\n\\n Argued and Submitted October 18, 2018\\n San Francisco, California\\n\\n Filed January 29, 2019\\n\\f2 GILL V. USDOJ\\n\\n Before: MILAN D. SMITH, JR. and ANDREW D.\\n HURWITZ, Circuit Judges, and RICHARD K. EATON, *\\n Judge.\\n\\n Opinion by Judge Milan D. Smith, Jr.\\n\\n\\n SUMMARY **\\n\\n\\n Administrative Procedure Act\\n\\n The panel affirmed the district court’s summary\\njudgment in favor of federal defendants in an action under\\nthe Administrative Procedure Act (“APA”) challenging the\\nFunctional Standard regarding the sharing of terrorism-\\nrelated information.\\n\\n In the wake of 9/11, the federal government sought to\\nstandardize the sharing of terrorism-related information\\nthrough the adoption of a Functional Standard. Plaintiffs are\\nUnited States citizens who are the subjects of a Suspicious\\nActivity Report (SAR) or Information Sharing Environment\\n(ISE)-SAR, none of whom have been charged with a crime.\\n\\n The panel held that the Functional Standard constituted\\nfinal agency action because it had legal and practical effects.\\n\\n\\n\\n *\\n Richard K. Eaton, Judge of the United States Court of International\\nTrade, sitting by designation.\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\f GILL V. USDOJ 3\\n\\n The panel held that the Functional Standard was exempt\\nfrom the APA’s notice and comment requirement because\\nthe significant discretion retained by agencies and their\\nanalysts in determining whether to disseminate information\\ndemonstrated that the Functional Standard was not a\\nlegislative rule. Legislative rules have the force of law, and\\nare subject to notice and comment under the APA before\\nbecoming effective.\\n\\n Plaintiffs argued that the Functional Standard was\\narbitrary and capricious under the APA because it was\\ninconsistent with the “reasonable suspicion” standard for\\ndisseminating criminal intelligence information in 28 C.F.R.\\nPart 23. The panel held that the Department of Justice’s\\ndecision to exclude SARs from Part 23 was not contrary to\\nthe record, and was consistent with the stated objectives of\\nthe Nationwide Suspicious Activity Reporting Initiative.\\nThe panel concluded that the Functional Standard was not\\narbitrary and capricious under the APA.\\n\\n\\n COUNSEL\\n\\nLinda Lye (argued) and Julia Harumi, American Civil\\nLiberties Union Foundation of Northern California Inc., San\\nFrancisco, California; Michael James Ableson and Stephen\\nScotch-Marmo, Morgan, Lewis & Bockius LLP, New York,\\nNew York; Christina Sinha, Asian Americans Advancing\\nJustice—Asian Law Caucus, San Francisco, California;\\nHugh Handeyside, American Civil Liberties Union\\nFoundation, New York, New York; Mitra Ebadolahi,\\nAmerican Civil Liberties Union Foundation of San Diego\\nand Imperial Counties, San Diego, California; Jeffrey S.\\nRaskin, Morgan Lewis & Bockius LLP, San Francisco,\\nCalifornia; Peter Bibring, American Civil Liberties Union\\n\\f4 GILL V. USDOJ\\n\\nFoundation of Southern California, Los Angeles, California;\\nfor Plaintiffs-Appellants.\\n\\nDaniel Aguilar (argued) and H. Thomas Byron III, Appellate\\nStaff; Alex G. Tse, Acting United States Attorney; Civil\\nDivision, United States Department of Justice, Washington,\\nD.C.; for Defendants-Appellees.\\n\\n\\n OPINION\\n\\nM. SMITH, Circuit Judge:\\n\\n In the wake of 9/11, law enforcement agencies at the\\nfederal, state, and local levels found that they were unable to\\ncommunicate effectively about potential threats to our\\nnational security. In response, the federal government\\nsought to standardize the sharing of terrorism-related\\ninformation through the adoption of a “Functional\\nStandard.” Aaron Conklin, Wiley Gill, Khaled Ibrahim,\\nJames Prigoff, and Tariq Razak (collectively, Plaintiffs)\\nchallenged the Functional Standard under the\\nAdministrative Procedure Act (APA). 1 The district court\\ngranted summary judgment in favor of the federal\\ndefendants.\\n\\n We affirm. Although the Functional Standard\\nconstitutes final agency action, it was not required to\\nundergo the APA notice and comment procedure, nor was it\\narbitrary and capricious.\\n\\n\\n 1\\n Plaintiffs raised only an APA challenge and do not contend that\\nthe Functional Standard is unconstitutional or has been applied to them\\nin an unconstitutional manner.\\n\\f GILL V. USDOJ 5\\n\\n FACTUAL AND PROCEDURAL BACKGROUND\\n\\nI. Factual Background\\n\\n In October 2007, President George W. Bush issued a\\nNational Strategy for Information Sharing concerning\\nterrorism-related information. The Strategy created fusion\\ncenters that would ensure Suspicious Activity Reports\\n(SARs) were “disseminated to and evaluated by appropriate\\ngovernment authorities,” and identify requirements to\\nsupport a “unified process for reporting, tracking, and\\naccessing” SARs. The nationwide effort to standardize this\\ninformation sharing was called the Nationwide Suspicious\\nActivity Reporting Initiative (NSI).\\n\\n To “govern[] how terrorism information is acquired,\\naccessed, shared, and used,” the Program Manager for the\\nInformation Sharing Environment (ISE) has issued three\\nFunctional Standards since the inception of the NSI, each\\nsuperseding the previous one: Functional Standard 1.0\\n(issued January 2008), Functional Standard 1.5 (issued May\\n2009), and Functional Standard 1.5.5 (issued February\\n2015). 2 The current Functional Standard 1.5.5 focuses\\n“exclusively on terrorism-related information.”\\n\\n\\n 2\\n The Program Manager sought input from various civil liberties\\ngroups throughout the process of refining the Functional Standards.\\nAfter promulgating Standard 1.0, the Program Manager hosted a\\nconference with advocates from the American Civil Liberties Union\\n(ACLU) and other privacy and civil liberties groups. The ACLU noted\\nits concerns with the overbroad behavioral categories and the Standard’s\\ndefinition of a suspicious activity, suggesting a “reasonably indicative”\\nstandard. The ACLU also recommended that certain information should\\nnot be reported absent reasonable suspicion of criminality.\\n\\f6 GILL V. USDOJ\\n\\n The Functional Standard defines suspicious activity as\\n“[o]bserved behavior reasonably indicative of pre-\\noperational planning associated with terrorism or other\\ncriminal activity.” After receiving a report of suspicious\\nactivity, an officer creates a SAR. The SAR then undergoes\\na two-part evaluation process. An analyst determines\\nwhether the SAR meets certain behavioral criteria and has a\\npotential nexus to terrorism. 3 If the analyst concludes that it\\ndoes, the SAR becomes an ISE-SAR, and is uploaded to the\\neGuardian repository, where it is available to all NSI\\nparticipants. The ISE-SAR is also input into the Federal\\nBureau of Investigation (FBI) classified system and sent to\\nthe Department of Homeland Security Office of Intelligence\\nAnalysis.\\n\\n Plaintiffs are United States citizens who are the subjects\\nof a SAR or ISE-SAR, none of whom has been charged with\\na crime. The ISE-SAR on Gill notes his potential access to\\na “flight simulator type of game,” his conversion to Islam,\\nand his “pious demeanor.” The FBI visited Gill’s sister and\\nquestioned her about Gill’s religious beliefs. Another SAR\\ndescribes Razak as a male of believed Middle Eastern\\ndescent who “meticulously stud[ied] the entry/exit points”\\n\\n\\n After the ISE issued Functional Standard 1.5, the Program Manager\\nre-engaged with the ACLU to obtain their feedback on a draft privacy\\nand civil liberties report. The ACLU again recommended that\\ninformation meet the reasonably indicative standard before\\ndissemination. In May 2013, the ISE held another conference with civil\\nliberties groups, including the ACLU, to discuss Functional Standard\\n1.5.5.\\n\\n 3\\n The behavioral categories include both defined criminal activity,\\nsuch as “Breach/Attempted Intrusion,” “Misrepresentation,” and\\n“Cyberattack,” along with other activity, such as “Photography,”\\n“Acquisition of Expertise,” and “Weapons Collection/Discovery.”\\n\\f GILL V. USDOJ 7\\n\\nof a train station. After the SAR was uploaded to eGuardian,\\nthe FBI questioned Razak. The SAR concerning Ibrahim\\nnotes his attempt to purchase “a large amount of computers.”\\nTwo reports concerning Ibrahim were uploaded to\\neGuardian.\\n\\n Private guards prevented Prigoff, a professional\\nphotographer, from taking photographs of a work of public\\nart near Boston, an incident resulting in the creation of\\nmultiple SARs. The FBI then visited Prigoff’s home and\\nquestioned a neighbor about him. In northern California,\\nprivate security stopped Conklin, an amateur photographer,\\nfrom photographing oil refineries, and during the subsequent\\nquestioning, the sheriff’s deputies told him he would be\\nplaced on an “NSA watch list.”\\n\\nII. Procedural Background\\n\\n In 2014, Plaintiffs sued the Attorney General, the\\nDepartment of Justice, and the ISE Program Manager\\n(collectively, the Department). The complaint asserted two\\nAPA challenges to the Functional Standard, contending that:\\n(1) the promulgation of the Functional Standard without\\nnotice and comment was unlawful; and (2) the Standard was\\narbitrary and capricious because it did not comply with the\\n“reasonable suspicion” standard in 28 C.F.R. Part 23 for the\\ndissemination of criminal intelligence information. 4\\n\\n The Department moved to dismiss, arguing that\\nPlaintiffs lacked standing, and that the Functional Standard\\n\\n\\n\\n 4\\n At the onset of this lawsuit, only Functional Standard 1.5 was at\\nissue. Version 1.5.5 was not promulgated until February 2015. At the\\nsummary judgment stage, Plaintiffs challenged both versions.\\n\\f8 GILL V. USDOJ\\n\\ndid not constitute final agency action pursuant to the APA.\\nThe district court denied the Department’s motion.\\n\\n The parties later cross-moved for summary judgment.\\nThe district court granted summary judgment for the\\nDepartment, finding that: (1) the Functional Standard is a\\npolicy guidance statement exempt from the notice and\\ncomment requirement; and (2) the Functional Standard is not\\narbitrary and capricious because it addresses data issues\\noutside the scope of 28 C.F.R. Part 23. Plaintiffs timely\\nappealed.\\n\\n JURISDICTION AND STANDARD OF REVIEW\\n\\n We have jurisdiction pursuant to 28 U.S.C. § 1291. We\\nreview de novo a district court’s grant of summary judgment,\\nand we may affirm on any ground supported by the record.\\nWhite v. City of Sparks, 500 F.3d 953, 955 (9th Cir. 2007).\\n\\n ANALYSIS\\n\\nI. Final Agency Action\\n\\n The APA allows judicial review only of final agency\\nactions. 5 U.S.C. § 704; see Ukiah Valley Med. Ctr. v. FTC,\\n911 F.2d 261, 266 (9th Cir. 1990). Although it denied the\\nDepartment’s motion to dismiss for lack of finality, the\\ndistrict court observed in its summary judgment order that\\nthere was “good reason to treat the Functional Standard as\\nnot constituting a final agency action.” We review de novo\\nwhether agency action is final. Havasupai Tribe v.\\nProvencio, 906 F.3d 1155, 1161–62 (9th Cir. 2018).\\n\\n For agency action to be final, it must “mark the\\nconsummation of the agency’s decisionmaking process” and\\n“must be one by which rights or obligations have been\\n\\f GILL V. USDOJ 9\\n\\ndetermined, or from which legal consequences will flow.”\\nBennett v. Spear, 520 U.S. 154, 177–78 (1997) (internal\\nquotation marks omitted). “We focus on the practical and\\nlegal effects of the agency action” and interpret finality in a\\n“pragmatic and flexible manner.” Or. Nat. Desert Ass’n v.\\nU.S. Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006); see also\\nIndus. Customers of Nw. Utils. v. Bonneville Power Admin.,\\n408 F.3d 638, 646 (9th Cir. 2005) (considering any “direct\\nand immediate effect on the day-to-day operations of the\\nparty seeking review,” and if “immediate compliance with\\nthe [action’s] terms is expected”). Regardless of an agency’s\\ncharacterization, we consider the actual effects of the action\\nto determine whether it is final. Columbia Riverkeeper v.\\nU.S. Coast Guard, 761 F.3d 1084, 1094–95 (9th Cir. 2014).\\n\\n The Department does not dispute that the first finality\\nrequirement—consummation of the decisionmaking\\nprocess—is met. Instead, it concentrates on the second\\nBennett prong, contending the Functional Standard “merely\\nprovides procedural guidelines for [agencies’] voluntary\\nparticipation” and does not impose binding obligations.\\nPlaintiffs counter that the Functional Standard has legal\\nforce because the Department can revoke an agency’s\\neGuardian membership for violating the terms of the\\neGuardian User Agreement, which requires compliance with\\nthe Standard. Plaintiffs also assert that compliance with the\\nFunctional Standard is a practical requirement of the NSI,\\nand that this “condition on participation” renders the\\nFunctional Standard final. We agree; the Functional\\nStandard constitutes final agency action because it has legal\\nand practical effects.\\n\\n The Functional Standard imposes “direct and\\nappreciable legal consequences.” Bennett, 520 U.S. at 178.\\nIn Oregon Natural Desert, we held the Forest Service’s\\n\\f10 GILL V. USDOJ\\n\\nissuance of annual operating instructions (AOIs) to\\npermittees grazing livestock on national forest land\\nconstituted final agency action under the APA. 465 F.3d at\\n979. The AOIs outlined restrictions on the permit holder’s\\nright to graze. Id. at 980, 986. If a permittee did not comply\\nwith the directives in the AOI, the Forest Service could issue\\na notice of non-compliance and impose administrative\\nsanctions, such as suspension or cancellation of the permit,\\nagainst the permit holder. Id. at 987–88. We held that the\\nAOIs had legal consequences because the Forest Service\\ncould take enforcement actions against a non-complying\\npermittee, imposing “substantial and intricate legal\\nobligations.” Id. at 988, 990.\\n\\n The Functional Standard is not materially\\ndistinguishable. To be sure, participation in the NSI remains\\nwithin the agencies’ discretion. And, absent that\\nparticipation, the Functional Standard does not obligate\\nanalysts or agencies to send SAR information or penalize\\nthem for sending non-compliant SARs. But, as the\\nDepartment conceded below, once an agency decides to\\nparticipate, the eGuardian User Agreement permits the\\nDepartment to revoke agency membership for violating\\nvarious policies, including the Functional Standard. Like the\\nsuspension of permits in Oregon Natural Desert, 465 F.3d\\nat 988, eGuardian membership revocation is a legal\\nconsequence.\\n\\n The Functional Standard is also final agency action\\nbecause of its practical effects. In Havasupai, we held a\\nForest Service Mineral Report was a “practical requirement\\nto the continued operation” of a mine—and therefore final\\nagency action—because the parties “understood that mine\\noperations would not resume until” the Mineral Report’s\\ndetermination of valid existing rights “was completed.”\\n\\f GILL V. USDOJ 11\\n\\n906 F.3d at 1163. An agency action can be final even if its\\nlegal or practical effects are contingent on a future event.\\nSee Bennett, 520 U.S. at 170 (noting an agency could\\n“technically” disregard the issued opinion, but to do so\\nwould subject it or its employees to “substantial civil and\\ncriminal penalties, including imprisonment”); City of\\nFremont v. F.E.R.C., 336 F.3d 910, 914 (9th Cir. 2003)\\n(concluding agency orders that attach legal consequences to\\nfuture proceedings satisfy the finality analysis).\\n\\n Similarly, because the eGuardian User Agreement\\npermits the Department to revoke participating agencies’\\naccess for failure to comply with the Functional Standard,\\nonce an agency joined the NSI there was the immediate\\nunderstanding that its analysts would conform to the\\nFunctional Standard when submitting SARs. Thus, we hold\\nthe Functional Standard constitutes final agency action.\\n\\nII. Notice and Comment Procedure\\n\\n The APA requires a notice and comment procedure for\\nagency “rule making.” 5 5 U.S.C. § 553. However,\\n“interpretive rules, general statements of policy, or rules of\\nagency organization, procedure, or practice” are exempt\\nfrom the notice and comment requirement. 5 U.S.C.\\n§ 553(b)(3)(A). The district court found the Functional\\nStandard was “fundamentally a policy guidance statement”\\nand therefore not subject to the notice and comment\\nrequirement. We review de novo the district court’s\\ndetermination of the scope of the APA’s notice and comment\\n\\n\\n\\n 5\\n The APA defines “rule making” as “agency process for\\nformulating, amending, or repealing a rule.” 5 U.S.C. § 551(5).\\n\\f12 GILL V. USDOJ\\n\\nrequirement. Mada-Luna v. Fitzpatrick, 813 F.2d 1006,\\n1011 (9th Cir. 1987).\\n\\n Legislative rules have the “force of law,” and are subject\\nto notice and comment under the APA before becoming\\neffective Hemp Indus. Ass’n v. Drug Enf’t Admin., 333 F.3d\\n1082, 1087–88 (9th Cir. 2003). Policy guidance statements,\\non the other hand, “do not have the force and effect of law\\nand are not accorded that weight in the adjudicatory\\nprocess,” see Shalala v. Guernsey Mem’l Hosp., 514 U.S.\\n87, 99 (1995), and need not undergo notice and comment.\\n“The critical factor to determine whether a directive\\nannouncing a new policy constitutes a legislative rule or a\\ngeneral statement of policy ‘is the extent to which the\\nchallenged [directive] leaves the agency, or its implementing\\nofficial, free to exercise discretion to follow, or not to follow,\\nthe [announced] policy in an individual case.’” Colwell v.\\nDep’t of Health & Human Servs., 558 F.3d 1112, 1124 (9th\\nCir. 2009) (second and third alterations in original) (quoting\\nMada-Luna, 813 F.2d at 1013). That a policy “provid[es]\\ndirection—where once there was none”—does not\\nautomatically transform it into a legislative rule. Prof’ls &\\nPatients for Customized Care v. Shalala, 56 F.3d 592, 600–\\n01 (5th Cir. 1995).\\n\\n Plaintiffs contend the Functional Standard is a legislative\\nrule because it creates a “binding norm” by establishing\\nsixteen exclusive categories the agencies must use in\\ndefining suspicious activity. The Department responds that\\nthe Functional Standard is not a legislative rule because it\\nprovides only standardized guidance that does not have any\\nlegal effect. Although we “need not accept the agency\\ncharacterization at face value,” Hemp Indus., 333 F.3d at\\n1087, we agree with the Department that the Functional\\n\\f GILL V. USDOJ 13\\n\\nStandard is not a legislative rule because it allows analysts\\nto exercise discretion.\\n\\n SARs undergo a two-part evaluation before being\\nincluded in eGuardian. First, an FBI or fusion center analyst\\n“reviews” the SAR information against the sixteen pre-\\noperational behaviors identified in the Functional Standard,\\n“keeping in mind . . . the importance of context, facts, and\\ncircumstances.” If the SAR information reflects one or more\\nof the pre-operational behaviors, then, based on the “context,\\nfacts, and circumstances,” the analyst uses “professional\\njudgment” to determine whether the information has a\\npotential nexus to terrorism. Only if—in the analyst’s\\njudgment—a potential nexus to terrorism exists is the SAR\\ndisseminated as an ISE-SAR.\\n\\n While the Functional Standard employs a combination\\nof mandatory and discretionary language, it does not compel\\nanalysts or agencies to disseminate SAR information, nor\\ndoes it require analysts to create an ISE-SAR when the\\ninformation reflects a certain number of behavioral\\ncategories. Rather, if the SAR contains at least one of the\\ncategorized activities, the analyst must still ascertain\\nwhether it has a potential nexus to terrorism. No single\\ncategory of behavior or aggregation of categories is\\ndeterminative.\\n\\n The Functional Standard is thus similar to the Food &\\nDrug Administration’s policy guide at issue in Professionals\\nand Patients for Customized Care. The FDA promulgated a\\npolicy utilizing nine factors to help the agency determine\\nwhether to initiate an enforcement action against a pharmacy\\nengaged in drug manufacturing. 56 F.3d at 593. In holding\\nthat the policy did not constitute a legislative rule, the Fifth\\nCircuit noted that although the nine factors “assist[ed] the\\nFDA in identifying pharmacies engaged in the manufacture\\n\\f14 GILL V. USDOJ\\n\\nof drugs,” the “ultimate decision whether to bring an\\nenforcement action” remained with the agency. Id. at 601.\\nLikewise, the Functional Standard aids agencies in\\ndetermining whether an individual is engaged in suspicious\\nactivity, but the final decision to disseminate an SAR rests\\nin the analyst’s discretion.\\n\\n This significant discretion retained by agencies and their\\nanalysts in determining whether to disseminate information\\ncompels our decision that the Functional Standard is not a\\nlegislative rule. Therefore, the Functional Standard was\\nexempt from the notice and comment requirement.\\n\\nIII. Arbitrary and Capricious\\n\\n Agency action violates the APA if it is arbitrary or\\ncapricious. 5 U.S.C. § 706(2)(A). Plaintiffs argue that the\\nFunctional Standard is arbitrary and capricious because it is\\ninconsistent with the “reasonable suspicion” standard for\\ndisseminating criminal intelligence information in 28 C.F.R.\\nPart 23 (Part 23). On summary judgment, the district court\\nrejected that argument. We review the district court’s\\ndecision de novo. Nat’l Ass’n of Home Builders v. Norton,\\n340 F.3d 835, 840–41 (9th Cir. 2003).\\n\\n Pursuant to Part 23, criminal intelligence systems can\\nretain criminal intelligence information “only if there is\\nreasonable suspicion that the individual is involved in\\ncriminal conduct or activity.” 28 C.F.R. § 23.20(a)\\n(emphasis added). Part 23 defines criminal intelligence\\ninformation, in pertinent part, as “data which has been\\nevaluated to determine that it: (i) is relevant to the\\nidentification of and the criminal activity engaged in by an\\nindividual who or organization which is reasonably\\nsuspected of involvement in criminal activity.” Id.\\n§ 23.3(b)(3). The Functional Standard, in contrast, defines\\n\\f GILL V. USDOJ 15\\n\\nsuspicious activity as “[o]bserved behavior reasonably\\nindicative of pre-operational planning associated with\\nterrorism or other criminal activity.” (emphasis added).\\nConsequently, some SARs—including those related to\\nPlaintiffs—do not reach the reasonable suspicion standard\\nthat Part 23 requires for criminal intelligence.\\n\\n Plaintiffs’ arbitrary and capricious challenge is twofold.\\nThey contend that: (1) the Department initially failed to\\nconsider the applicability of Part 23; and (2) the rationale\\neventually offered for why Part 23 does not apply contradicts\\nthe record.\\n\\n Several principles guide our analysis. An agency must\\n“examine the relevant data and articulate a satisfactory\\nexplanation for its action including a ‘rational connection\\nbetween the facts found and the choice made.’” Motor\\nVehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto.\\nIns. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck\\nLines, Inc. v. United States, 371 U.S. 156, 168 (1962)). A\\nrule is arbitrary and capricious if the agency has “entirely\\nfailed to consider an important aspect of the problem, [or]\\noffered an explanation for its decision that runs counter to\\nthe evidence before the agency.” Id. Our review of an\\nagency decision “is based on the administrative record and\\nthe basis for the agency’s decision must come from the\\nrecord.” Norton, 340 F.3d at 841. That review is “narrow;”\\nwe may not “substitute [our] judgment for that of the\\nagency.” FCC v. Fox Television Stations, Inc., 556 U.S. 502,\\n513 (2009). And, we will “uphold a decision of less than\\nideal clarity if the agency’s path may reasonably be\\ndiscerned.” Motor Vehicle, 463 U.S. at 43.\\n\\n First, Plaintiffs challenge the ISE’s July 2010\\nexplanation concerning Functional Standard 1.5’s use of the\\n“reasonably indicative” standard as a post-hoc\\n\\f16 GILL V. USDOJ\\n\\nrationalization. But, Functional Standard 1.5.5, promulgated\\nin February 2015, superseded version 1.5. The Executive\\nSummary for version 1.5.5 provided a detailed explanation\\nfor why SAR information need not comply with Part 23 and\\nthe reasonable suspicion standard. Thus, Plaintiffs’\\nargument concerning the Department’s 2010 explanation for\\nFunctional Standard 1.5 is moot.\\n\\n Second, Plaintiffs argue that the ISE’s 2015 explanation\\nis inconsistent with Functional Standard 1.5.5. The 2015\\nexplanation states that SAR information “represents\\ninformation about suspicious behavior” and “has a potential\\ncriminal nexus.” In contrast, it asserts that criminal\\nintelligence “focuses on the investigative stage once a tip or\\nlead has been received and on identifying the specific\\ncriminal subject(s), the criminal activity in which they are\\nengaged, and the evaluation of facts to determine that the\\nreasonable suspicion standard has been met.” Succinctly,\\naccording to the 2015 explanation, criminal intelligence is “a\\nproduct of investigation.”\\n\\n The Department asserts that its interpretation of Part 23\\nis entitled to Auer deference, which requires an agency’s\\ninterpretation of its own ambiguous regulation to control\\nunless “plainly erroneous or inconsistent with the\\nregulation.” Turtle Island Restoration Network v. U.S. Dep’t\\nof Commerce, 878 F.3d 725, 733 (9th Cir. 2017) (quoting\\nAuer v. Robbins, 519 U.S. 452, 461 (1997)). “But Auer\\ndeference is warranted only when the language of the\\nregulation is ambiguous.” Christensen v. Harris Cty.,\\n529 U.S. 576, 588 (2000). If the language of a “regulation\\nis unambiguous, we apply the terms as written.”\\nChristopher v. SmithKline Beecham Corp., 635 F.3d 383,\\n392 (9th Cir. 2011). The Department identifies no ambiguity\\nin Part 23, and we find none. Thus, we independently\\n\\f GILL V. USDOJ 17\\n\\ndetermine whether the ISE’s decision to exclude the\\nFunctional Standard from Part 23’s scope is consistent with\\nthe regulation.\\n\\n Plaintiffs focus on the one sentence in the Department’s\\nexplanation of Functional Standard 1.5.5, which states that\\nPart 23 “[c]riminal intelligence information is a product of\\ninvestigation.” They argue that SARs are also criminal\\nintelligence subject to the reasonable suspicion standard of\\nPart 23 because an official conducts “initial investigation or\\nfact gathering” before creating a SAR. That narrow focus\\ndistorts the ISE’s explanation.\\n\\n As originally conceived in October 2007, SARs involved\\n“tips and leads” information, that is, an “uncorroborated\\nreport or information that alleges or indicates some form of\\npossible criminal activity.” Tips and leads required only\\n“mere suspicion,” a lower standard than the reasonable\\nsuspicion required for criminal intelligence data. In\\nresponse to concerns regarding Functional Standard 1.0,\\nversion 1.5 implemented a somewhat stricter standard—\\n“reasonably indicative”—albeit one still less demanding\\nthan the reasonable suspicion standard. Given the lower\\nreasonably indicative standard utilized by the Functional\\nStandard, some SARs do not rise to the level of criminal\\nintelligence. This lower threshold underscores the purpose\\nof ISE-SARs disseminated in accordance with Functional\\nStandard 1.5.5: to determine whether to engage in “follow-\\nup information gathering” about potential terrorist activity,\\nnot necessarily to determine whether a crime has occurred.\\n\\n The distinction between criminal intelligence and SAR\\ninformation is admittedly not always precise. The ISE\\nProgram Manager early on recognized the potential for\\nSARs to contain criminal intelligence subject to Part 23.\\nThus, the ISE’s Initial Privacy and Civil Liberties Analysis\\n\\f18 GILL V. USDOJ\\n\\nof September 2008 stated, “agencies should clearly articulate\\nwhen 28 C.F.R. Part 23 should be applied . . . . ISE-SAR\\ninformation . . . may be subject to the requirements of 28\\nC.F.R. Part 23.” Further, an investigating officer “gathers\\nadditional facts through personal observations, interviews,\\nand other investigative activities before creating a SAR,\\nsuggesting that the “product of investigation” phrase is not\\ndispositive of whether SAR information comes within the\\nambit of Part 23.\\n\\n “We will . . . uphold a decision of less than ideal clarity\\nif the agency’s path may reasonably be discerned.” Motor\\nVehicle, 463 U.S. at 43. From the outset, the ISE has\\nconsistently pronounced that an ISE-SAR need not meet the\\nreasonable suspicion standard in order to expand the base of\\ninformation gathered. The 2015 explanation, published with\\nFunctional Standard 1.5.5, also makes clear that the\\ngovernment intentionally seeks more than reports showing a\\nreasonable suspicion that terrorism-related crimes have\\noccurred. Considering the entirety of the 2015 rationale and\\nthe historical explanations before us, we find the\\nDepartment’s decision to exclude SARs from Part 23 is not\\ncontrary to the record, and is consistent with the stated\\nobjectives of the NSI. Accordingly, we hold that the\\nFunctional Standard was not arbitrary and capricious.\\n\\n CONCLUSION\\n\\n The Functional Standard endeavors to standardize\\nterrorism-related information sharing nationwide. Although\\nthe Functional Standard constituted final agency action, it\\nwas not a legislative rule because it requires significant\\nanalyst discretion. It therefore was exempt from the notice\\nand comment requirement. And, the Standard was not\\narbitrary and capricious because the ISE’s 2015 explanation\\ndistinguishing Part 23 information and SARs is consistent\\n\\f GILL V. USDOJ 19\\n\\nwith the ISE’s objectives. We affirm the judgment of the\\ndistrict court.\\n\\n AFFIRMED.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4362710/\", \"author_raw\": \"M. SMITH, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"MILAN D SMITH JR"},"judge2":{"kind":"string","value":"ANDREW D HURWITZ"},"judge3":{"kind":"string","value":"RICHARD K EATON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"MILAN D SMITH JR\": \", Circuit\", \"ANDREW D HURWITZ\": \", Circuit\", \"RICHARD K EATON\": \",\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4585457/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Wiley Gill v. DOJ\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nWILEY GILL; JAMES PRIGOFF; No. 17-16107\nTARIQ RAZAK; KHALED IBRAHIM;\nAARON CONKLIN, D.C. No.\n Plaintiffs-Appellants, 3:14-cv-03120-RS\n\n v.\n OPINION\nUNITED STATES DEPARTMENT OF\nJUSTICE; MATTHEW WHITAKER,\nActing Attorney General;\nPROGRAM MANAGER -\nINFORMATION SHARING\nENVIRONMENT; THE OFFICE OF\nTHE PROGRAM MANAGER OF THE\nINFORMATION SHARING\nENVIRONMENT,\n Defendants-Appellees.\n\n\n\n Appeal from the United States District Court\n for the Northern District of California\n Richard Seeborg, District Judge, Presiding\n\n Argued and Submitted October 18, 2018\n San Francisco, California\n\n Filed January 29, 2019\n\f2 GILL V. USDOJ\n\n Before: MILAN D. SMITH, JR. and ANDREW D.\n HURWITZ, Circuit Judges, and RICHARD K. EATON, *\n Judge.\n\n Opinion by Judge Milan D. Smith, Jr.\n\n\n SUMMARY **\n\n\n Administrative Procedure Act\n\n The panel affirmed the district court’s summary\njudgment in favor of federal defendants in an action under\nthe Administrative Procedure Act (“APA”) challenging the\nFunctional Standard regarding the sharing of terrorism-\nrelated information.\n\n In the wake of 9/11, the federal government sought to\nstandardize the sharing of terrorism-related information\nthrough the adoption of a Functional Standard. Plaintiffs are\nUnited States citizens who are the subjects of a Suspicious\nActivity Report (SAR) or Information Sharing Environment\n(ISE)-SAR, none of whom have been charged with a crime.\n\n The panel held that the Functional Standard constituted\nfinal agency action because it had legal and practical effects.\n\n\n\n *\n Richard K. Eaton, Judge of the United States Court of International\nTrade, sitting by designation.\n **\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f GILL V. USDOJ 3\n\n The panel held that the Functional Standard was exempt\nfrom the APA’s notice and comment requirement because\nthe significant discretion retained by agencies and their\nanalysts in determining whether to disseminate information\ndemonstrated that the Functional Standard was not a\nlegislative rule. Legislative rules have the force of law, and\nare subject to notice and comment under the APA before\nbecoming effective.\n\n Plaintiffs argued that the Functional Standard was\narbitrary and capricious under the APA because it was\ninconsistent with the “reasonable suspicion” standard for\ndisseminating criminal intelligence information in 28 C.F.R.\nPart 23. The panel held that the Department of Justice’s\ndecision to exclude SARs from Part 23 was not contrary to\nthe record, and was consistent with the stated objectives of\nthe Nationwide Suspicious Activity Reporting Initiative.\nThe panel concluded that the Functional Standard was not\narbitrary and capricious under the APA.\n\n\n COUNSEL\n\nLinda Lye (argued) and Julia Harumi, American Civil\nLiberties Union Foundation of Northern California Inc., San\nFrancisco, California; Michael James Ableson and Stephen\nScotch-Marmo, Morgan, Lewis & Bockius LLP, New York,\nNew York; Christina Sinha, Asian Americans Advancing\nJustice—Asian Law Caucus, San Francisco, California;\nHugh Handeyside, American Civil Liberties Union\nFoundation, New York, New York; Mitra Ebadolahi,\nAmerican Civil Liberties Union Foundation of San Diego\nand Imperial Counties, San Diego, California; Jeffrey S.\nRaskin, Morgan Lewis & Bockius LLP, San Francisco,\nCalifornia; Peter Bibring, American Civil Liberties Union\n\f4 GILL V. USDOJ\n\nFoundation of Southern California, Los Angeles, California;\nfor Plaintiffs-Appellants.\n\nDaniel Aguilar (argued) and H. Thomas Byron III, Appellate\nStaff; Alex G. Tse, Acting United States Attorney; Civil\nDivision, United States Department of Justice, Washington,\nD.C.; for Defendants-Appellees.\n\n\n OPINION\n\nM. SMITH, Circuit Judge:\n\n In the wake of 9/11, law enforcement agencies at the\nfederal, state, and local levels found that they were unable to\ncommunicate effectively about potential threats to our\nnational security. In response, the federal government\nsought to standardize the sharing of terrorism-related\ninformation through the adoption of a “Functional\nStandard.” Aaron Conklin, Wiley Gill, Khaled Ibrahim,\nJames Prigoff, and Tariq Razak (collectively, Plaintiffs)\nchallenged the Functional Standard under the\nAdministrative Procedure Act (APA). 1 The district court\ngranted summary judgment in favor of the federal\ndefendants.\n\n We affirm. Although the Functional Standard\nconstitutes final agency action, it was not required to\nundergo the APA notice and comment procedure, nor was it\narbitrary and capricious.\n\n\n 1\n Plaintiffs raised only an APA challenge and do not contend that\nthe Functional Standard is unconstitutional or has been applied to them\nin an unconstitutional manner.\n\f GILL V. USDOJ 5\n\n FACTUAL AND PROCEDURAL BACKGROUND\n\nI. Factual Background\n\n In October 2007, President George W. Bush issued a\nNational Strategy for Information Sharing concerning\nterrorism-related information. The Strategy created fusion\ncenters that would ensure Suspicious Activity Reports\n(SARs) were “disseminated to and evaluated by appropriate\ngovernment authorities,” and identify requirements to\nsupport a “unified process for reporting, tracking, and\naccessing” SARs. The nationwide effort to standardize this\ninformation sharing was called the Nationwide Suspicious\nActivity Reporting Initiative (NSI).\n\n To “govern[] how terrorism information is acquired,\naccessed, shared, and used,” the Program Manager for the\nInformation Sharing Environment (ISE) has issued three\nFunctional Standards since the inception of the NSI, each\nsuperseding the previous one: Functional Standard 1.0\n(issued January 2008), Functional Standard 1.5 (issued May\n2009), and Functional Standard 1.5.5 (issued February\n2015). 2 The current Functional Standard 1.5.5 focuses\n“exclusively on terrorism-related information.”\n\n\n 2\n The Program Manager sought input from various civil liberties\ngroups throughout the process of refining the Functional Standards.\nAfter promulgating Standard 1.0, the Program Manager hosted a\nconference with advocates from the American Civil Liberties Union\n(ACLU) and other privacy and civil liberties groups. The ACLU noted\nits concerns with the overbroad behavioral categories and the Standard’s\ndefinition of a suspicious activity, suggesting a “reasonably indicative”\nstandard. The ACLU also recommended that certain information should\nnot be reported absent reasonable suspicion of criminality.\n\f6 GILL V. USDOJ\n\n The Functional Standard defines suspicious activity as\n“[o]bserved behavior reasonably indicative of pre-\noperational planning associated with terrorism or other\ncriminal activity.” After receiving a report of suspicious\nactivity, an officer creates a SAR. The SAR then undergoes\na two-part evaluation process. An analyst determines\nwhether the SAR meets certain behavioral criteria and has a\npotential nexus to terrorism. 3 If the analyst concludes that it\ndoes, the SAR becomes an ISE-SAR, and is uploaded to the\neGuardian repository, where it is available to all NSI\nparticipants. The ISE-SAR is also input into the Federal\nBureau of Investigation (FBI) classified system and sent to\nthe Department of Homeland Security Office of Intelligence\nAnalysis.\n\n Plaintiffs are United States citizens who are the subjects\nof a SAR or ISE-SAR, none of whom has been charged with\na crime. The ISE-SAR on Gill notes his potential access to\na “flight simulator type of game,” his conversion to Islam,\nand his “pious demeanor.” The FBI visited Gill’s sister and\nquestioned her about Gill’s religious beliefs. Another SAR\ndescribes Razak as a male of believed Middle Eastern\ndescent who “meticulously stud[ied] the entry/exit points”\n\n\n After the ISE issued Functional Standard 1.5, the Program Manager\nre-engaged with the ACLU to obtain their feedback on a draft privacy\nand civil liberties report. The ACLU again recommended that\ninformation meet the reasonably indicative standard before\ndissemination. In May 2013, the ISE held another conference with civil\nliberties groups, including the ACLU, to discuss Functional Standard\n1.5.5.\n\n 3\n The behavioral categories include both defined criminal activity,\nsuch as “Breach/Attempted Intrusion,” “Misrepresentation,” and\n“Cyberattack,” along with other activity, such as “Photography,”\n“Acquisition of Expertise,” and “Weapons Collection/Discovery.”\n\f GILL V. USDOJ 7\n\nof a train station. After the SAR was uploaded to eGuardian,\nthe FBI questioned Razak. The SAR concerning Ibrahim\nnotes his attempt to purchase “a large amount of computers.”\nTwo reports concerning Ibrahim were uploaded to\neGuardian.\n\n Private guards prevented Prigoff, a professional\nphotographer, from taking photographs of a work of public\nart near Boston, an incident resulting in the creation of\nmultiple SARs. The FBI then visited Prigoff’s home and\nquestioned a neighbor about him. In northern California,\nprivate security stopped Conklin, an amateur photographer,\nfrom photographing oil refineries, and during the subsequent\nquestioning, the sheriff’s deputies told him he would be\nplaced on an “NSA watch list.”\n\nII. Procedural Background\n\n In 2014, Plaintiffs sued the Attorney General, the\nDepartment of Justice, and the ISE Program Manager\n(collectively, the Department). The complaint asserted two\nAPA challenges to the Functional Standard, contending that:\n(1) the promulgation of the Functional Standard without\nnotice and comment was unlawful; and (2) the Standard was\narbitrary and capricious because it did not comply with the\n“reasonable suspicion” standard in 28 C.F.R. Part 23 for the\ndissemination of criminal intelligence information. 4\n\n The Department moved to dismiss, arguing that\nPlaintiffs lacked standing, and that the Functional Standard\n\n\n\n 4\n At the onset of this lawsuit, only Functional Standard 1.5 was at\nissue. Version 1.5.5 was not promulgated until February 2015. At the\nsummary judgment stage, Plaintiffs challenged both versions.\n\f8 GILL V. USDOJ\n\ndid not constitute final agency action pursuant to the APA.\nThe district court denied the Department’s motion.\n\n The parties later cross-moved for summary judgment.\nThe district court granted summary judgment for the\nDepartment, finding that: (1) the Functional Standard is a\npolicy guidance statement exempt from the notice and\ncomment requirement; and (2) the Functional Standard is not\narbitrary and capricious because it addresses data issues\noutside the scope of 28 C.F.R. Part 23. Plaintiffs timely\nappealed.\n\n JURISDICTION AND STANDARD OF REVIEW\n\n We have jurisdiction pursuant to 28 U.S.C. § 1291. We\nreview de novo a district court’s grant of summary judgment,\nand we may affirm on any ground supported by the record.\nWhite v. City of Sparks, 500 F.3d 953, 955 (9th Cir. 2007).\n\n ANALYSIS\n\nI. Final Agency Action\n\n The APA allows judicial review only of final agency\nactions. 5 U.S.C. § 704; see Ukiah Valley Med. Ctr. v. FTC,\n911 F.2d 261, 266 (9th Cir. 1990). Although it denied the\nDepartment’s motion to dismiss for lack of finality, the\ndistrict court observed in its summary judgment order that\nthere was “good reason to treat the Functional Standard as\nnot constituting a final agency action.” We review de novo\nwhether agency action is final. Havasupai Tribe v.\nProvencio, 906 F.3d 1155, 1161–62 (9th Cir. 2018).\n\n For agency action to be final, it must “mark the\nconsummation of the agency’s decisionmaking process” and\n“must be one by which rights or obligations have been\n\f GILL V. USDOJ 9\n\ndetermined, or from which legal consequences will flow.”\nBennett v. Spear, 520 U.S. 154, 177–78 (1997) (internal\nquotation marks omitted). “We focus on the practical and\nlegal effects of the agency action” and interpret finality in a\n“pragmatic and flexible manner.” Or. Nat. Desert Ass’n v.\nU.S. Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006); see also\nIndus. Customers of Nw. Utils. v. Bonneville Power Admin.,\n408 F.3d 638, 646 (9th Cir. 2005) (considering any “direct\nand immediate effect on the day-to-day operations of the\nparty seeking review,” and if “immediate compliance with\nthe [action’s] terms is expected”). Regardless of an agency’s\ncharacterization, we consider the actual effects of the action\nto determine whether it is final. Columbia Riverkeeper v.\nU.S. Coast Guard, 761 F.3d 1084, 1094–95 (9th Cir. 2014).\n\n The Department does not dispute that the first finality\nrequirement—consummation of the decisionmaking\nprocess—is met. Instead, it concentrates on the second\nBennett prong, contending the Functional Standard “merely\nprovides procedural guidelines for [agencies’] voluntary\nparticipation” and does not impose binding obligations.\nPlaintiffs counter that the Functional Standard has legal\nforce because the Department can revoke an agency’s\neGuardian membership for violating the terms of the\neGuardian User Agreement, which requires compliance with\nthe Standard. Plaintiffs also assert that compliance with the\nFunctional Standard is a practical requirement of the NSI,\nand that this “condition on participation” renders the\nFunctional Standard final. We agree; the Functional\nStandard constitutes final agency action because it has legal\nand practical effects.\n\n The Functional Standard imposes “direct and\nappreciable legal consequences.” Bennett, 520 U.S. at 178.\nIn Oregon Natural Desert, we held the Forest Service’s\n\f10 GILL V. USDOJ\n\nissuance of annual operating instructions (AOIs) to\npermittees grazing livestock on national forest land\nconstituted final agency action under the APA. 465 F.3d at\n979. The AOIs outlined restrictions on the permit holder’s\nright to graze. Id. at 980, 986. If a permittee did not comply\nwith the directives in the AOI, the Forest Service could issue\na notice of non-compliance and impose administrative\nsanctions, such as suspension or cancellation of the permit,\nagainst the permit holder. Id. at 987–88. We held that the\nAOIs had legal consequences because the Forest Service\ncould take enforcement actions against a non-complying\npermittee, imposing “substantial and intricate legal\nobligations.” Id. at 988, 990.\n\n The Functional Standard is not materially\ndistinguishable. To be sure, participation in the NSI remains\nwithin the agencies’ discretion. And, absent that\nparticipation, the Functional Standard does not obligate\nanalysts or agencies to send SAR information or penalize\nthem for sending non-compliant SARs. But, as the\nDepartment conceded below, once an agency decides to\nparticipate, the eGuardian User Agreement permits the\nDepartment to revoke agency membership for violating\nvarious policies, including the Functional Standard. Like the\nsuspension of permits in Oregon Natural Desert, 465 F.3d\nat 988, eGuardian membership revocation is a legal\nconsequence.\n\n The Functional Standard is also final agency action\nbecause of its practical effects. In Havasupai, we held a\nForest Service Mineral Report was a “practical requirement\nto the continued operation” of a mine—and therefore final\nagency action—because the parties “understood that mine\noperations would not resume until” the Mineral Report’s\ndetermination of valid existing rights “was completed.”\n\f GILL V. USDOJ 11\n\n906 F.3d at 1163. An agency action can be final even if its\nlegal or practical effects are contingent on a future event.\nSee Bennett, 520 U.S. at 170 (noting an agency could\n“technically” disregard the issued opinion, but to do so\nwould subject it or its employees to “substantial civil and\ncriminal penalties, including imprisonment”); City of\nFremont v. F.E.R.C., 336 F.3d 910, 914 (9th Cir. 2003)\n(concluding agency orders that attach legal consequences to\nfuture proceedings satisfy the finality analysis).\n\n Similarly, because the eGuardian User Agreement\npermits the Department to revoke participating agencies’\naccess for failure to comply with the Functional Standard,\nonce an agency joined the NSI there was the immediate\nunderstanding that its analysts would conform to the\nFunctional Standard when submitting SARs. Thus, we hold\nthe Functional Standard constitutes final agency action.\n\nII. Notice and Comment Procedure\n\n The APA requires a notice and comment procedure for\nagency “rule making.” 5 5 U.S.C. § 553. However,\n“interpretive rules, general statements of policy, or rules of\nagency organization, procedure, or practice” are exempt\nfrom the notice and comment requirement. 5 U.S.C.\n§ 553(b)(3)(A). The district court found the Functional\nStandard was “fundamentally a policy guidance statement”\nand therefore not subject to the notice and comment\nrequirement. We review de novo the district court’s\ndetermination of the scope of the APA’s notice and comment\n\n\n\n 5\n The APA defines “rule making” as “agency process for\nformulating, amending, or repealing a rule.” 5 U.S.C. § 551(5).\n\f12 GILL V. USDOJ\n\nrequirement. Mada-Luna v. Fitzpatrick, 813 F.2d 1006,\n1011 (9th Cir. 1987).\n\n Legislative rules have the “force of law,” and are subject\nto notice and comment under the APA before becoming\neffective Hemp Indus. Ass’n v. Drug Enf’t Admin., 333 F.3d\n1082, 1087–88 (9th Cir. 2003). Policy guidance statements,\non the other hand, “do not have the force and effect of law\nand are not accorded that weight in the adjudicatory\nprocess,” see Shalala v. Guernsey Mem’l Hosp., 514 U.S.\n87, 99 (1995), and need not undergo notice and comment.\n“The critical factor to determine whether a directive\nannouncing a new policy constitutes a legislative rule or a\ngeneral statement of policy ‘is the extent to which the\nchallenged [directive] leaves the agency, or its implementing\nofficial, free to exercise discretion to follow, or not to follow,\nthe [announced] policy in an individual case.’” Colwell v.\nDep’t of Health & Human Servs., 558 F.3d 1112, 1124 (9th\nCir. 2009) (second and third alterations in original) (quoting\nMada-Luna, 813 F.2d at 1013). That a policy “provid[es]\ndirection—where once there was none”—does not\nautomatically transform it into a legislative rule. Prof’ls &\nPatients for Customized Care v. Shalala, 56 F.3d 592, 600–\n01 (5th Cir. 1995).\n\n Plaintiffs contend the Functional Standard is a legislative\nrule because it creates a “binding norm” by establishing\nsixteen exclusive categories the agencies must use in\ndefining suspicious activity. The Department responds that\nthe Functional Standard is not a legislative rule because it\nprovides only standardized guidance that does not have any\nlegal effect. Although we “need not accept the agency\ncharacterization at face value,” Hemp Indus., 333 F.3d at\n1087, we agree with the Department that the Functional\n\f GILL V. USDOJ 13\n\nStandard is not a legislative rule because it allows analysts\nto exercise discretion.\n\n SARs undergo a two-part evaluation before being\nincluded in eGuardian. First, an FBI or fusion center analyst\n“reviews” the SAR information against the sixteen pre-\noperational behaviors identified in the Functional Standard,\n“keeping in mind . . . the importance of context, facts, and\ncircumstances.” If the SAR information reflects one or more\nof the pre-operational behaviors, then, based on the “context,\nfacts, and circumstances,” the analyst uses “professional\njudgment” to determine whether the information has a\npotential nexus to terrorism. Only if—in the analyst’s\njudgment—a potential nexus to terrorism exists is the SAR\ndisseminated as an ISE-SAR.\n\n While the Functional Standard employs a combination\nof mandatory and discretionary language, it does not compel\nanalysts or agencies to disseminate SAR information, nor\ndoes it require analysts to create an ISE-SAR when the\ninformation reflects a certain number of behavioral\ncategories. Rather, if the SAR contains at least one of the\ncategorized activities, the analyst must still ascertain\nwhether it has a potential nexus to terrorism. No single\ncategory of behavior or aggregation of categories is\ndeterminative.\n\n The Functional Standard is thus similar to the Food &\nDrug Administration’s policy guide at issue in Professionals\nand Patients for Customized Care. The FDA promulgated a\npolicy utilizing nine factors to help the agency determine\nwhether to initiate an enforcement action against a pharmacy\nengaged in drug manufacturing. 56 F.3d at 593. In holding\nthat the policy did not constitute a legislative rule, the Fifth\nCircuit noted that although the nine factors “assist[ed] the\nFDA in identifying pharmacies engaged in the manufacture\n\f14 GILL V. USDOJ\n\nof drugs,” the “ultimate decision whether to bring an\nenforcement action” remained with the agency. Id. at 601.\nLikewise, the Functional Standard aids agencies in\ndetermining whether an individual is engaged in suspicious\nactivity, but the final decision to disseminate an SAR rests\nin the analyst’s discretion.\n\n This significant discretion retained by agencies and their\nanalysts in determining whether to disseminate information\ncompels our decision that the Functional Standard is not a\nlegislative rule. Therefore, the Functional Standard was\nexempt from the notice and comment requirement.\n\nIII. Arbitrary and Capricious\n\n Agency action violates the APA if it is arbitrary or\ncapricious. 5 U.S.C. § 706(2)(A). Plaintiffs argue that the\nFunctional Standard is arbitrary and capricious because it is\ninconsistent with the “reasonable suspicion” standard for\ndisseminating criminal intelligence information in 28 C.F.R.\nPart 23 (Part 23). On summary judgment, the district court\nrejected that argument. We review the district court’s\ndecision de novo. Nat’l Ass’n of Home Builders v. Norton,\n340 F.3d 835, 840–41 (9th Cir. 2003).\n\n Pursuant to Part 23, criminal intelligence systems can\nretain criminal intelligence information “only if there is\nreasonable suspicion that the individual is involved in\ncriminal conduct or activity.” 28 C.F.R. § 23.20(a)\n(emphasis added). Part 23 defines criminal intelligence\ninformation, in pertinent part, as “data which has been\nevaluated to determine that it: (i) is relevant to the\nidentification of and the criminal activity engaged in by an\nindividual who or organization which is reasonably\nsuspected of involvement in criminal activity.” Id.\n§ 23.3(b)(3). The Functional Standard, in contrast, defines\n\f GILL V. USDOJ 15\n\nsuspicious activity as “[o]bserved behavior reasonably\nindicative of pre-operational planning associated with\nterrorism or other criminal activity.” (emphasis added).\nConsequently, some SARs—including those related to\nPlaintiffs—do not reach the reasonable suspicion standard\nthat Part 23 requires for criminal intelligence.\n\n Plaintiffs’ arbitrary and capricious challenge is twofold.\nThey contend that: (1) the Department initially failed to\nconsider the applicability of Part 23; and (2) the rationale\neventually offered for why Part 23 does not apply contradicts\nthe record.\n\n Several principles guide our analysis. An agency must\n“examine the relevant data and articulate a satisfactory\nexplanation for its action including a ‘rational connection\nbetween the facts found and the choice made.’” Motor\nVehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto.\nIns. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck\nLines, Inc. v. United States, 371 U.S. 156, 168 (1962)). A\nrule is arbitrary and capricious if the agency has “entirely\nfailed to consider an important aspect of the problem, [or]\noffered an explanation for its decision that runs counter to\nthe evidence before the agency.” Id. Our review of an\nagency decision “is based on the administrative record and\nthe basis for the agency’s decision must come from the\nrecord.” Norton, 340 F.3d at 841. That review is “narrow;”\nwe may not “substitute [our] judgment for that of the\nagency.” FCC v. Fox Television Stations, Inc., 556 U.S. 502,\n513 (2009). And, we will “uphold a decision of less than\nideal clarity if the agency’s path may reasonably be\ndiscerned.” Motor Vehicle, 463 U.S. at 43.\n\n First, Plaintiffs challenge the ISE’s July 2010\nexplanation concerning Functional Standard 1.5’s use of the\n“reasonably indicative” standard as a post-hoc\n\f16 GILL V. USDOJ\n\nrationalization. But, Functional Standard 1.5.5, promulgated\nin February 2015, superseded version 1.5. The Executive\nSummary for version 1.5.5 provided a detailed explanation\nfor why SAR information need not comply with Part 23 and\nthe reasonable suspicion standard. Thus, Plaintiffs’\nargument concerning the Department’s 2010 explanation for\nFunctional Standard 1.5 is moot.\n\n Second, Plaintiffs argue that the ISE’s 2015 explanation\nis inconsistent with Functional Standard 1.5.5. The 2015\nexplanation states that SAR information “represents\ninformation about suspicious behavior” and “has a potential\ncriminal nexus.” In contrast, it asserts that criminal\nintelligence “focuses on the investigative stage once a tip or\nlead has been received and on identifying the specific\ncriminal subject(s), the criminal activity in which they are\nengaged, and the evaluation of facts to determine that the\nreasonable suspicion standard has been met.” Succinctly,\naccording to the 2015 explanation, criminal intelligence is “a\nproduct of investigation.”\n\n The Department asserts that its interpretation of Part 23\nis entitled to Auer deference, which requires an agency’s\ninterpretation of its own ambiguous regulation to control\nunless “plainly erroneous or inconsistent with the\nregulation.” Turtle Island Restoration Network v. U.S. Dep’t\nof Commerce, 878 F.3d 725, 733 (9th Cir. 2017) (quoting\nAuer v. Robbins, 519 U.S. 452, 461 (1997)). “But Auer\ndeference is warranted only when the language of the\nregulation is ambiguous.” Christensen v. Harris Cty.,\n529 U.S. 576, 588 (2000). If the language of a “regulation\nis unambiguous, we apply the terms as written.”\nChristopher v. SmithKline Beecham Corp., 635 F.3d 383,\n392 (9th Cir. 2011). The Department identifies no ambiguity\nin Part 23, and we find none. Thus, we independently\n\f GILL V. USDOJ 17\n\ndetermine whether the ISE’s decision to exclude the\nFunctional Standard from Part 23’s scope is consistent with\nthe regulation.\n\n Plaintiffs focus on the one sentence in the Department’s\nexplanation of Functional Standard 1.5.5, which states that\nPart 23 “[c]riminal intelligence information is a product of\ninvestigation.” They argue that SARs are also criminal\nintelligence subject to the reasonable suspicion standard of\nPart 23 because an official conducts “initial investigation or\nfact gathering” before creating a SAR. That narrow focus\ndistorts the ISE’s explanation.\n\n As originally conceived in October 2007, SARs involved\n“tips and leads” information, that is, an “uncorroborated\nreport or information that alleges or indicates some form of\npossible criminal activity.” Tips and leads required only\n“mere suspicion,” a lower standard than the reasonable\nsuspicion required for criminal intelligence data. In\nresponse to concerns regarding Functional Standard 1.0,\nversion 1.5 implemented a somewhat stricter standard—\n“reasonably indicative”—albeit one still less demanding\nthan the reasonable suspicion standard. Given the lower\nreasonably indicative standard utilized by the Functional\nStandard, some SARs do not rise to the level of criminal\nintelligence. This lower threshold underscores the purpose\nof ISE-SARs disseminated in accordance with Functional\nStandard 1.5.5: to determine whether to engage in “follow-\nup information gathering” about potential terrorist activity,\nnot necessarily to determine whether a crime has occurred.\n\n The distinction between criminal intelligence and SAR\ninformation is admittedly not always precise. The ISE\nProgram Manager early on recognized the potential for\nSARs to contain criminal intelligence subject to Part 23.\nThus, the ISE’s Initial Privacy and Civil Liberties Analysis\n\f18 GILL V. USDOJ\n\nof September 2008 stated, “agencies should clearly articulate\nwhen 28 C.F.R. Part 23 should be applied . . . . ISE-SAR\ninformation . . . may be subject to the requirements of 28\nC.F.R. Part 23.” Further, an investigating officer “gathers\nadditional facts through personal observations, interviews,\nand other investigative activities before creating a SAR,\nsuggesting that the “product of investigation” phrase is not\ndispositive of whether SAR information comes within the\nambit of Part 23.\n\n “We will . . . uphold a decision of less than ideal clarity\nif the agency’s path may reasonably be discerned.” Motor\nVehicle, 463 U.S. at 43. From the outset, the ISE has\nconsistently pronounced that an ISE-SAR need not meet the\nreasonable suspicion standard in order to expand the base of\ninformation gathered. The 2015 explanation, published with\nFunctional Standard 1.5.5, also makes clear that the\ngovernment intentionally seeks more than reports showing a\nreasonable suspicion that terrorism-related crimes have\noccurred. Considering the entirety of the 2015 rationale and\nthe historical explanations before us, we find the\nDepartment’s decision to exclude SARs from Part 23 is not\ncontrary to the record, and is consistent with the stated\nobjectives of the NSI. Accordingly, we hold that the\nFunctional Standard was not arbitrary and capricious.\n\n CONCLUSION\n\n The Functional Standard endeavors to standardize\nterrorism-related information sharing nationwide. Although\nthe Functional Standard constituted final agency action, it\nwas not a legislative rule because it requires significant\nanalyst discretion. It therefore was exempt from the notice\nand comment requirement. And, the Standard was not\narbitrary and capricious because the ISE’s 2015 explanation\ndistinguishing Part 23 information and SARs is consistent\n\f GILL V. USDOJ 19\n\nwith the ISE’s objectives. We affirm the judgment of the\ndistrict court.\n\n AFFIRMED.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Wiley Gill v. DOJ\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-01-29\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nWILEY GILL; JAMES PRIGOFF; No. 17-16107\\nTARIQ RAZAK; KHALED IBRAHIM;\\nAARON CONKLIN, D.C. No.\\n Plaintiffs-Appellants, 3:14-cv-03120-RS\\n\\n v.\\n OPINION\\nUNITED STATES DEPARTMENT OF\\nJUSTICE; MATTHEW WHITAKER,\\nActing Attorney General;\\nPROGRAM MANAGER -\\nINFORMATION SHARING\\nENVIRONMENT; THE OFFICE OF\\nTHE PROGRAM MANAGER OF THE\\nINFORMATION SHARING\\nENVIRONMENT,\\n Defendants-Appellees.\\n\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of California\\n Richard Seeborg, District Judge, Presiding\\n\\n Argued and Submitted October 18, 2018\\n San Francisco, California\\n\\n Filed January 29, 2019\\n\\f2 GILL V. USDOJ\\n\\n Before: MILAN D. SMITH, JR. and ANDREW D.\\n HURWITZ, Circuit Judges, and RICHARD K. EATON, *\\n Judge.\\n\\n Opinion by Judge Milan D. Smith, Jr.\\n\\n\\n SUMMARY **\\n\\n\\n Administrative Procedure Act\\n\\n The panel affirmed the district court’s summary\\njudgment in favor of federal defendants in an action under\\nthe Administrative Procedure Act (“APA”) challenging the\\nFunctional Standard regarding the sharing of terrorism-\\nrelated information.\\n\\n In the wake of 9/11, the federal government sought to\\nstandardize the sharing of terrorism-related information\\nthrough the adoption of a Functional Standard. Plaintiffs are\\nUnited States citizens who are the subjects of a Suspicious\\nActivity Report (SAR) or Information Sharing Environment\\n(ISE)-SAR, none of whom have been charged with a crime.\\n\\n The panel held that the Functional Standard constituted\\nfinal agency action because it had legal and practical effects.\\n\\n\\n\\n *\\n Richard K. Eaton, Judge of the United States Court of International\\nTrade, sitting by designation.\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\f GILL V. USDOJ 3\\n\\n The panel held that the Functional Standard was exempt\\nfrom the APA’s notice and comment requirement because\\nthe significant discretion retained by agencies and their\\nanalysts in determining whether to disseminate information\\ndemonstrated that the Functional Standard was not a\\nlegislative rule. Legislative rules have the force of law, and\\nare subject to notice and comment under the APA before\\nbecoming effective.\\n\\n Plaintiffs argued that the Functional Standard was\\narbitrary and capricious under the APA because it was\\ninconsistent with the “reasonable suspicion” standard for\\ndisseminating criminal intelligence information in 28 C.F.R.\\nPart 23. The panel held that the Department of Justice’s\\ndecision to exclude SARs from Part 23 was not contrary to\\nthe record, and was consistent with the stated objectives of\\nthe Nationwide Suspicious Activity Reporting Initiative.\\nThe panel concluded that the Functional Standard was not\\narbitrary and capricious under the APA.\\n\\n\\n COUNSEL\\n\\nLinda Lye (argued) and Julia Harumi, American Civil\\nLiberties Union Foundation of Northern California Inc., San\\nFrancisco, California; Michael James Ableson and Stephen\\nScotch-Marmo, Morgan, Lewis & Bockius LLP, New York,\\nNew York; Christina Sinha, Asian Americans Advancing\\nJustice—Asian Law Caucus, San Francisco, California;\\nHugh Handeyside, American Civil Liberties Union\\nFoundation, New York, New York; Mitra Ebadolahi,\\nAmerican Civil Liberties Union Foundation of San Diego\\nand Imperial Counties, San Diego, California; Jeffrey S.\\nRaskin, Morgan Lewis & Bockius LLP, San Francisco,\\nCalifornia; Peter Bibring, American Civil Liberties Union\\n\\f4 GILL V. USDOJ\\n\\nFoundation of Southern California, Los Angeles, California;\\nfor Plaintiffs-Appellants.\\n\\nDaniel Aguilar (argued) and H. Thomas Byron III, Appellate\\nStaff; Alex G. Tse, Acting United States Attorney; Civil\\nDivision, United States Department of Justice, Washington,\\nD.C.; for Defendants-Appellees.\\n\\n\\n OPINION\\n\\nM. SMITH, Circuit Judge:\\n\\n In the wake of 9/11, law enforcement agencies at the\\nfederal, state, and local levels found that they were unable to\\ncommunicate effectively about potential threats to our\\nnational security. In response, the federal government\\nsought to standardize the sharing of terrorism-related\\ninformation through the adoption of a “Functional\\nStandard.” Aaron Conklin, Wiley Gill, Khaled Ibrahim,\\nJames Prigoff, and Tariq Razak (collectively, Plaintiffs)\\nchallenged the Functional Standard under the\\nAdministrative Procedure Act (APA). 1 The district court\\ngranted summary judgment in favor of the federal\\ndefendants.\\n\\n We affirm. Although the Functional Standard\\nconstitutes final agency action, it was not required to\\nundergo the APA notice and comment procedure, nor was it\\narbitrary and capricious.\\n\\n\\n 1\\n Plaintiffs raised only an APA challenge and do not contend that\\nthe Functional Standard is unconstitutional or has been applied to them\\nin an unconstitutional manner.\\n\\f GILL V. USDOJ 5\\n\\n FACTUAL AND PROCEDURAL BACKGROUND\\n\\nI. Factual Background\\n\\n In October 2007, President George W. Bush issued a\\nNational Strategy for Information Sharing concerning\\nterrorism-related information. The Strategy created fusion\\ncenters that would ensure Suspicious Activity Reports\\n(SARs) were “disseminated to and evaluated by appropriate\\ngovernment authorities,” and identify requirements to\\nsupport a “unified process for reporting, tracking, and\\naccessing” SARs. The nationwide effort to standardize this\\ninformation sharing was called the Nationwide Suspicious\\nActivity Reporting Initiative (NSI).\\n\\n To “govern[] how terrorism information is acquired,\\naccessed, shared, and used,” the Program Manager for the\\nInformation Sharing Environment (ISE) has issued three\\nFunctional Standards since the inception of the NSI, each\\nsuperseding the previous one: Functional Standard 1.0\\n(issued January 2008), Functional Standard 1.5 (issued May\\n2009), and Functional Standard 1.5.5 (issued February\\n2015). 2 The current Functional Standard 1.5.5 focuses\\n“exclusively on terrorism-related information.”\\n\\n\\n 2\\n The Program Manager sought input from various civil liberties\\ngroups throughout the process of refining the Functional Standards.\\nAfter promulgating Standard 1.0, the Program Manager hosted a\\nconference with advocates from the American Civil Liberties Union\\n(ACLU) and other privacy and civil liberties groups. The ACLU noted\\nits concerns with the overbroad behavioral categories and the Standard’s\\ndefinition of a suspicious activity, suggesting a “reasonably indicative”\\nstandard. The ACLU also recommended that certain information should\\nnot be reported absent reasonable suspicion of criminality.\\n\\f6 GILL V. USDOJ\\n\\n The Functional Standard defines suspicious activity as\\n“[o]bserved behavior reasonably indicative of pre-\\noperational planning associated with terrorism or other\\ncriminal activity.” After receiving a report of suspicious\\nactivity, an officer creates a SAR. The SAR then undergoes\\na two-part evaluation process. An analyst determines\\nwhether the SAR meets certain behavioral criteria and has a\\npotential nexus to terrorism. 3 If the analyst concludes that it\\ndoes, the SAR becomes an ISE-SAR, and is uploaded to the\\neGuardian repository, where it is available to all NSI\\nparticipants. The ISE-SAR is also input into the Federal\\nBureau of Investigation (FBI) classified system and sent to\\nthe Department of Homeland Security Office of Intelligence\\nAnalysis.\\n\\n Plaintiffs are United States citizens who are the subjects\\nof a SAR or ISE-SAR, none of whom has been charged with\\na crime. The ISE-SAR on Gill notes his potential access to\\na “flight simulator type of game,” his conversion to Islam,\\nand his “pious demeanor.” The FBI visited Gill’s sister and\\nquestioned her about Gill’s religious beliefs. Another SAR\\ndescribes Razak as a male of believed Middle Eastern\\ndescent who “meticulously stud[ied] the entry/exit points”\\n\\n\\n After the ISE issued Functional Standard 1.5, the Program Manager\\nre-engaged with the ACLU to obtain their feedback on a draft privacy\\nand civil liberties report. The ACLU again recommended that\\ninformation meet the reasonably indicative standard before\\ndissemination. In May 2013, the ISE held another conference with civil\\nliberties groups, including the ACLU, to discuss Functional Standard\\n1.5.5.\\n\\n 3\\n The behavioral categories include both defined criminal activity,\\nsuch as “Breach/Attempted Intrusion,” “Misrepresentation,” and\\n“Cyberattack,” along with other activity, such as “Photography,”\\n“Acquisition of Expertise,” and “Weapons Collection/Discovery.”\\n\\f GILL V. USDOJ 7\\n\\nof a train station. After the SAR was uploaded to eGuardian,\\nthe FBI questioned Razak. The SAR concerning Ibrahim\\nnotes his attempt to purchase “a large amount of computers.”\\nTwo reports concerning Ibrahim were uploaded to\\neGuardian.\\n\\n Private guards prevented Prigoff, a professional\\nphotographer, from taking photographs of a work of public\\nart near Boston, an incident resulting in the creation of\\nmultiple SARs. The FBI then visited Prigoff’s home and\\nquestioned a neighbor about him. In northern California,\\nprivate security stopped Conklin, an amateur photographer,\\nfrom photographing oil refineries, and during the subsequent\\nquestioning, the sheriff’s deputies told him he would be\\nplaced on an “NSA watch list.”\\n\\nII. Procedural Background\\n\\n In 2014, Plaintiffs sued the Attorney General, the\\nDepartment of Justice, and the ISE Program Manager\\n(collectively, the Department). The complaint asserted two\\nAPA challenges to the Functional Standard, contending that:\\n(1) the promulgation of the Functional Standard without\\nnotice and comment was unlawful; and (2) the Standard was\\narbitrary and capricious because it did not comply with the\\n“reasonable suspicion” standard in 28 C.F.R. Part 23 for the\\ndissemination of criminal intelligence information. 4\\n\\n The Department moved to dismiss, arguing that\\nPlaintiffs lacked standing, and that the Functional Standard\\n\\n\\n\\n 4\\n At the onset of this lawsuit, only Functional Standard 1.5 was at\\nissue. Version 1.5.5 was not promulgated until February 2015. At the\\nsummary judgment stage, Plaintiffs challenged both versions.\\n\\f8 GILL V. USDOJ\\n\\ndid not constitute final agency action pursuant to the APA.\\nThe district court denied the Department’s motion.\\n\\n The parties later cross-moved for summary judgment.\\nThe district court granted summary judgment for the\\nDepartment, finding that: (1) the Functional Standard is a\\npolicy guidance statement exempt from the notice and\\ncomment requirement; and (2) the Functional Standard is not\\narbitrary and capricious because it addresses data issues\\noutside the scope of 28 C.F.R. Part 23. Plaintiffs timely\\nappealed.\\n\\n JURISDICTION AND STANDARD OF REVIEW\\n\\n We have jurisdiction pursuant to 28 U.S.C. § 1291. We\\nreview de novo a district court’s grant of summary judgment,\\nand we may affirm on any ground supported by the record.\\nWhite v. City of Sparks, 500 F.3d 953, 955 (9th Cir. 2007).\\n\\n ANALYSIS\\n\\nI. Final Agency Action\\n\\n The APA allows judicial review only of final agency\\nactions. 5 U.S.C. § 704; see Ukiah Valley Med. Ctr. v. FTC,\\n911 F.2d 261, 266 (9th Cir. 1990). Although it denied the\\nDepartment’s motion to dismiss for lack of finality, the\\ndistrict court observed in its summary judgment order that\\nthere was “good reason to treat the Functional Standard as\\nnot constituting a final agency action.” We review de novo\\nwhether agency action is final. Havasupai Tribe v.\\nProvencio, 906 F.3d 1155, 1161–62 (9th Cir. 2018).\\n\\n For agency action to be final, it must “mark the\\nconsummation of the agency’s decisionmaking process” and\\n“must be one by which rights or obligations have been\\n\\f GILL V. USDOJ 9\\n\\ndetermined, or from which legal consequences will flow.”\\nBennett v. Spear, 520 U.S. 154, 177–78 (1997) (internal\\nquotation marks omitted). “We focus on the practical and\\nlegal effects of the agency action” and interpret finality in a\\n“pragmatic and flexible manner.” Or. Nat. Desert Ass’n v.\\nU.S. Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006); see also\\nIndus. Customers of Nw. Utils. v. Bonneville Power Admin.,\\n408 F.3d 638, 646 (9th Cir. 2005) (considering any “direct\\nand immediate effect on the day-to-day operations of the\\nparty seeking review,” and if “immediate compliance with\\nthe [action’s] terms is expected”). Regardless of an agency’s\\ncharacterization, we consider the actual effects of the action\\nto determine whether it is final. Columbia Riverkeeper v.\\nU.S. Coast Guard, 761 F.3d 1084, 1094–95 (9th Cir. 2014).\\n\\n The Department does not dispute that the first finality\\nrequirement—consummation of the decisionmaking\\nprocess—is met. Instead, it concentrates on the second\\nBennett prong, contending the Functional Standard “merely\\nprovides procedural guidelines for [agencies’] voluntary\\nparticipation” and does not impose binding obligations.\\nPlaintiffs counter that the Functional Standard has legal\\nforce because the Department can revoke an agency’s\\neGuardian membership for violating the terms of the\\neGuardian User Agreement, which requires compliance with\\nthe Standard. Plaintiffs also assert that compliance with the\\nFunctional Standard is a practical requirement of the NSI,\\nand that this “condition on participation” renders the\\nFunctional Standard final. We agree; the Functional\\nStandard constitutes final agency action because it has legal\\nand practical effects.\\n\\n The Functional Standard imposes “direct and\\nappreciable legal consequences.” Bennett, 520 U.S. at 178.\\nIn Oregon Natural Desert, we held the Forest Service’s\\n\\f10 GILL V. USDOJ\\n\\nissuance of annual operating instructions (AOIs) to\\npermittees grazing livestock on national forest land\\nconstituted final agency action under the APA. 465 F.3d at\\n979. The AOIs outlined restrictions on the permit holder’s\\nright to graze. Id. at 980, 986. If a permittee did not comply\\nwith the directives in the AOI, the Forest Service could issue\\na notice of non-compliance and impose administrative\\nsanctions, such as suspension or cancellation of the permit,\\nagainst the permit holder. Id. at 987–88. We held that the\\nAOIs had legal consequences because the Forest Service\\ncould take enforcement actions against a non-complying\\npermittee, imposing “substantial and intricate legal\\nobligations.” Id. at 988, 990.\\n\\n The Functional Standard is not materially\\ndistinguishable. To be sure, participation in the NSI remains\\nwithin the agencies’ discretion. And, absent that\\nparticipation, the Functional Standard does not obligate\\nanalysts or agencies to send SAR information or penalize\\nthem for sending non-compliant SARs. But, as the\\nDepartment conceded below, once an agency decides to\\nparticipate, the eGuardian User Agreement permits the\\nDepartment to revoke agency membership for violating\\nvarious policies, including the Functional Standard. Like the\\nsuspension of permits in Oregon Natural Desert, 465 F.3d\\nat 988, eGuardian membership revocation is a legal\\nconsequence.\\n\\n The Functional Standard is also final agency action\\nbecause of its practical effects. In Havasupai, we held a\\nForest Service Mineral Report was a “practical requirement\\nto the continued operation” of a mine—and therefore final\\nagency action—because the parties “understood that mine\\noperations would not resume until” the Mineral Report’s\\ndetermination of valid existing rights “was completed.”\\n\\f GILL V. USDOJ 11\\n\\n906 F.3d at 1163. An agency action can be final even if its\\nlegal or practical effects are contingent on a future event.\\nSee Bennett, 520 U.S. at 170 (noting an agency could\\n“technically” disregard the issued opinion, but to do so\\nwould subject it or its employees to “substantial civil and\\ncriminal penalties, including imprisonment”); City of\\nFremont v. F.E.R.C., 336 F.3d 910, 914 (9th Cir. 2003)\\n(concluding agency orders that attach legal consequences to\\nfuture proceedings satisfy the finality analysis).\\n\\n Similarly, because the eGuardian User Agreement\\npermits the Department to revoke participating agencies’\\naccess for failure to comply with the Functional Standard,\\nonce an agency joined the NSI there was the immediate\\nunderstanding that its analysts would conform to the\\nFunctional Standard when submitting SARs. Thus, we hold\\nthe Functional Standard constitutes final agency action.\\n\\nII. Notice and Comment Procedure\\n\\n The APA requires a notice and comment procedure for\\nagency “rule making.” 5 5 U.S.C. § 553. However,\\n“interpretive rules, general statements of policy, or rules of\\nagency organization, procedure, or practice” are exempt\\nfrom the notice and comment requirement. 5 U.S.C.\\n§ 553(b)(3)(A). The district court found the Functional\\nStandard was “fundamentally a policy guidance statement”\\nand therefore not subject to the notice and comment\\nrequirement. We review de novo the district court’s\\ndetermination of the scope of the APA’s notice and comment\\n\\n\\n\\n 5\\n The APA defines “rule making” as “agency process for\\nformulating, amending, or repealing a rule.” 5 U.S.C. § 551(5).\\n\\f12 GILL V. USDOJ\\n\\nrequirement. Mada-Luna v. Fitzpatrick, 813 F.2d 1006,\\n1011 (9th Cir. 1987).\\n\\n Legislative rules have the “force of law,” and are subject\\nto notice and comment under the APA before becoming\\neffective Hemp Indus. Ass’n v. Drug Enf’t Admin., 333 F.3d\\n1082, 1087–88 (9th Cir. 2003). Policy guidance statements,\\non the other hand, “do not have the force and effect of law\\nand are not accorded that weight in the adjudicatory\\nprocess,” see Shalala v. Guernsey Mem’l Hosp., 514 U.S.\\n87, 99 (1995), and need not undergo notice and comment.\\n“The critical factor to determine whether a directive\\nannouncing a new policy constitutes a legislative rule or a\\ngeneral statement of policy ‘is the extent to which the\\nchallenged [directive] leaves the agency, or its implementing\\nofficial, free to exercise discretion to follow, or not to follow,\\nthe [announced] policy in an individual case.’” Colwell v.\\nDep’t of Health & Human Servs., 558 F.3d 1112, 1124 (9th\\nCir. 2009) (second and third alterations in original) (quoting\\nMada-Luna, 813 F.2d at 1013). That a policy “provid[es]\\ndirection—where once there was none”—does not\\nautomatically transform it into a legislative rule. Prof’ls &\\nPatients for Customized Care v. Shalala, 56 F.3d 592, 600–\\n01 (5th Cir. 1995).\\n\\n Plaintiffs contend the Functional Standard is a legislative\\nrule because it creates a “binding norm” by establishing\\nsixteen exclusive categories the agencies must use in\\ndefining suspicious activity. The Department responds that\\nthe Functional Standard is not a legislative rule because it\\nprovides only standardized guidance that does not have any\\nlegal effect. Although we “need not accept the agency\\ncharacterization at face value,” Hemp Indus., 333 F.3d at\\n1087, we agree with the Department that the Functional\\n\\f GILL V. USDOJ 13\\n\\nStandard is not a legislative rule because it allows analysts\\nto exercise discretion.\\n\\n SARs undergo a two-part evaluation before being\\nincluded in eGuardian. First, an FBI or fusion center analyst\\n“reviews” the SAR information against the sixteen pre-\\noperational behaviors identified in the Functional Standard,\\n“keeping in mind . . . the importance of context, facts, and\\ncircumstances.” If the SAR information reflects one or more\\nof the pre-operational behaviors, then, based on the “context,\\nfacts, and circumstances,” the analyst uses “professional\\njudgment” to determine whether the information has a\\npotential nexus to terrorism. Only if—in the analyst’s\\njudgment—a potential nexus to terrorism exists is the SAR\\ndisseminated as an ISE-SAR.\\n\\n While the Functional Standard employs a combination\\nof mandatory and discretionary language, it does not compel\\nanalysts or agencies to disseminate SAR information, nor\\ndoes it require analysts to create an ISE-SAR when the\\ninformation reflects a certain number of behavioral\\ncategories. Rather, if the SAR contains at least one of the\\ncategorized activities, the analyst must still ascertain\\nwhether it has a potential nexus to terrorism. No single\\ncategory of behavior or aggregation of categories is\\ndeterminative.\\n\\n The Functional Standard is thus similar to the Food &\\nDrug Administration’s policy guide at issue in Professionals\\nand Patients for Customized Care. The FDA promulgated a\\npolicy utilizing nine factors to help the agency determine\\nwhether to initiate an enforcement action against a pharmacy\\nengaged in drug manufacturing. 56 F.3d at 593. In holding\\nthat the policy did not constitute a legislative rule, the Fifth\\nCircuit noted that although the nine factors “assist[ed] the\\nFDA in identifying pharmacies engaged in the manufacture\\n\\f14 GILL V. USDOJ\\n\\nof drugs,” the “ultimate decision whether to bring an\\nenforcement action” remained with the agency. Id. at 601.\\nLikewise, the Functional Standard aids agencies in\\ndetermining whether an individual is engaged in suspicious\\nactivity, but the final decision to disseminate an SAR rests\\nin the analyst’s discretion.\\n\\n This significant discretion retained by agencies and their\\nanalysts in determining whether to disseminate information\\ncompels our decision that the Functional Standard is not a\\nlegislative rule. Therefore, the Functional Standard was\\nexempt from the notice and comment requirement.\\n\\nIII. Arbitrary and Capricious\\n\\n Agency action violates the APA if it is arbitrary or\\ncapricious. 5 U.S.C. § 706(2)(A). Plaintiffs argue that the\\nFunctional Standard is arbitrary and capricious because it is\\ninconsistent with the “reasonable suspicion” standard for\\ndisseminating criminal intelligence information in 28 C.F.R.\\nPart 23 (Part 23). On summary judgment, the district court\\nrejected that argument. We review the district court’s\\ndecision de novo. Nat’l Ass’n of Home Builders v. Norton,\\n340 F.3d 835, 840–41 (9th Cir. 2003).\\n\\n Pursuant to Part 23, criminal intelligence systems can\\nretain criminal intelligence information “only if there is\\nreasonable suspicion that the individual is involved in\\ncriminal conduct or activity.” 28 C.F.R. § 23.20(a)\\n(emphasis added). Part 23 defines criminal intelligence\\ninformation, in pertinent part, as “data which has been\\nevaluated to determine that it: (i) is relevant to the\\nidentification of and the criminal activity engaged in by an\\nindividual who or organization which is reasonably\\nsuspected of involvement in criminal activity.” Id.\\n§ 23.3(b)(3). The Functional Standard, in contrast, defines\\n\\f GILL V. USDOJ 15\\n\\nsuspicious activity as “[o]bserved behavior reasonably\\nindicative of pre-operational planning associated with\\nterrorism or other criminal activity.” (emphasis added).\\nConsequently, some SARs—including those related to\\nPlaintiffs—do not reach the reasonable suspicion standard\\nthat Part 23 requires for criminal intelligence.\\n\\n Plaintiffs’ arbitrary and capricious challenge is twofold.\\nThey contend that: (1) the Department initially failed to\\nconsider the applicability of Part 23; and (2) the rationale\\neventually offered for why Part 23 does not apply contradicts\\nthe record.\\n\\n Several principles guide our analysis. An agency must\\n“examine the relevant data and articulate a satisfactory\\nexplanation for its action including a ‘rational connection\\nbetween the facts found and the choice made.’” Motor\\nVehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto.\\nIns. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck\\nLines, Inc. v. United States, 371 U.S. 156, 168 (1962)). A\\nrule is arbitrary and capricious if the agency has “entirely\\nfailed to consider an important aspect of the problem, [or]\\noffered an explanation for its decision that runs counter to\\nthe evidence before the agency.” Id. Our review of an\\nagency decision “is based on the administrative record and\\nthe basis for the agency’s decision must come from the\\nrecord.” Norton, 340 F.3d at 841. That review is “narrow;”\\nwe may not “substitute [our] judgment for that of the\\nagency.” FCC v. Fox Television Stations, Inc., 556 U.S. 502,\\n513 (2009). And, we will “uphold a decision of less than\\nideal clarity if the agency’s path may reasonably be\\ndiscerned.” Motor Vehicle, 463 U.S. at 43.\\n\\n First, Plaintiffs challenge the ISE’s July 2010\\nexplanation concerning Functional Standard 1.5’s use of the\\n“reasonably indicative” standard as a post-hoc\\n\\f16 GILL V. USDOJ\\n\\nrationalization. But, Functional Standard 1.5.5, promulgated\\nin February 2015, superseded version 1.5. The Executive\\nSummary for version 1.5.5 provided a detailed explanation\\nfor why SAR information need not comply with Part 23 and\\nthe reasonable suspicion standard. Thus, Plaintiffs’\\nargument concerning the Department’s 2010 explanation for\\nFunctional Standard 1.5 is moot.\\n\\n Second, Plaintiffs argue that the ISE’s 2015 explanation\\nis inconsistent with Functional Standard 1.5.5. The 2015\\nexplanation states that SAR information “represents\\ninformation about suspicious behavior” and “has a potential\\ncriminal nexus.” In contrast, it asserts that criminal\\nintelligence “focuses on the investigative stage once a tip or\\nlead has been received and on identifying the specific\\ncriminal subject(s), the criminal activity in which they are\\nengaged, and the evaluation of facts to determine that the\\nreasonable suspicion standard has been met.” Succinctly,\\naccording to the 2015 explanation, criminal intelligence is “a\\nproduct of investigation.”\\n\\n The Department asserts that its interpretation of Part 23\\nis entitled to Auer deference, which requires an agency’s\\ninterpretation of its own ambiguous regulation to control\\nunless “plainly erroneous or inconsistent with the\\nregulation.” Turtle Island Restoration Network v. U.S. Dep’t\\nof Commerce, 878 F.3d 725, 733 (9th Cir. 2017) (quoting\\nAuer v. Robbins, 519 U.S. 452, 461 (1997)). “But Auer\\ndeference is warranted only when the language of the\\nregulation is ambiguous.” Christensen v. Harris Cty.,\\n529 U.S. 576, 588 (2000). If the language of a “regulation\\nis unambiguous, we apply the terms as written.”\\nChristopher v. SmithKline Beecham Corp., 635 F.3d 383,\\n392 (9th Cir. 2011). The Department identifies no ambiguity\\nin Part 23, and we find none. Thus, we independently\\n\\f GILL V. USDOJ 17\\n\\ndetermine whether the ISE’s decision to exclude the\\nFunctional Standard from Part 23’s scope is consistent with\\nthe regulation.\\n\\n Plaintiffs focus on the one sentence in the Department’s\\nexplanation of Functional Standard 1.5.5, which states that\\nPart 23 “[c]riminal intelligence information is a product of\\ninvestigation.” They argue that SARs are also criminal\\nintelligence subject to the reasonable suspicion standard of\\nPart 23 because an official conducts “initial investigation or\\nfact gathering” before creating a SAR. That narrow focus\\ndistorts the ISE’s explanation.\\n\\n As originally conceived in October 2007, SARs involved\\n“tips and leads” information, that is, an “uncorroborated\\nreport or information that alleges or indicates some form of\\npossible criminal activity.” Tips and leads required only\\n“mere suspicion,” a lower standard than the reasonable\\nsuspicion required for criminal intelligence data. In\\nresponse to concerns regarding Functional Standard 1.0,\\nversion 1.5 implemented a somewhat stricter standard—\\n“reasonably indicative”—albeit one still less demanding\\nthan the reasonable suspicion standard. Given the lower\\nreasonably indicative standard utilized by the Functional\\nStandard, some SARs do not rise to the level of criminal\\nintelligence. This lower threshold underscores the purpose\\nof ISE-SARs disseminated in accordance with Functional\\nStandard 1.5.5: to determine whether to engage in “follow-\\nup information gathering” about potential terrorist activity,\\nnot necessarily to determine whether a crime has occurred.\\n\\n The distinction between criminal intelligence and SAR\\ninformation is admittedly not always precise. The ISE\\nProgram Manager early on recognized the potential for\\nSARs to contain criminal intelligence subject to Part 23.\\nThus, the ISE’s Initial Privacy and Civil Liberties Analysis\\n\\f18 GILL V. USDOJ\\n\\nof September 2008 stated, “agencies should clearly articulate\\nwhen 28 C.F.R. Part 23 should be applied . . . . ISE-SAR\\ninformation . . . may be subject to the requirements of 28\\nC.F.R. Part 23.” Further, an investigating officer “gathers\\nadditional facts through personal observations, interviews,\\nand other investigative activities before creating a SAR,\\nsuggesting that the “product of investigation” phrase is not\\ndispositive of whether SAR information comes within the\\nambit of Part 23.\\n\\n “We will . . . uphold a decision of less than ideal clarity\\nif the agency’s path may reasonably be discerned.” Motor\\nVehicle, 463 U.S. at 43. From the outset, the ISE has\\nconsistently pronounced that an ISE-SAR need not meet the\\nreasonable suspicion standard in order to expand the base of\\ninformation gathered. The 2015 explanation, published with\\nFunctional Standard 1.5.5, also makes clear that the\\ngovernment intentionally seeks more than reports showing a\\nreasonable suspicion that terrorism-related crimes have\\noccurred. Considering the entirety of the 2015 rationale and\\nthe historical explanations before us, we find the\\nDepartment’s decision to exclude SARs from Part 23 is not\\ncontrary to the record, and is consistent with the stated\\nobjectives of the NSI. Accordingly, we hold that the\\nFunctional Standard was not arbitrary and capricious.\\n\\n CONCLUSION\\n\\n The Functional Standard endeavors to standardize\\nterrorism-related information sharing nationwide. Although\\nthe Functional Standard constituted final agency action, it\\nwas not a legislative rule because it requires significant\\nanalyst discretion. It therefore was exempt from the notice\\nand comment requirement. And, the Standard was not\\narbitrary and capricious because the ISE’s 2015 explanation\\ndistinguishing Part 23 information and SARs is consistent\\n\\f GILL V. USDOJ 19\\n\\nwith the ISE’s objectives. We affirm the judgment of the\\ndistrict court.\\n\\n AFFIRMED.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":368,"cells":{"id":{"kind":"number","value":4585458,"string":"4,585,458"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Desiree Gilberg v. Cal. Check Cashing Stores, LLC"},"decision_date":{"kind":"string","value":"2019-01-29"},"docket_number":{"kind":"string","value":"17-16263"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: Raymond C. Fisher and Milan D. Smith, Jr., Circuit Judges, and Lawrence L. Piersol, District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"FISHER, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"FOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n DESIREE GILBERG, on behalf of No. 17-16263\\n herself, all others similarly situated,\\n Plaintiff-Appellant, D.C. No.\\n 2:15-cv-02309-\\n v. JAM-AC\\n\\n CALIFORNIA CHECK CASHING\\n STORES, LLC, a California OPINION\\n corporation; CHECKSMART\\n FINANCIAL, LLC, a Delaware limited\\n liability company,\\n Defendants-Appellees.\\n\\n Appeal from the United States District Court\\n for the Eastern District of California\\n John A. Mendez, District Judge, Presiding\\n\\n Argued and Submitted November 15, 2018\\n San Francisco, California\\n\\n Filed January 29, 2019\\n\\n Before: Raymond C. Fisher and Milan D. Smith, Jr.,\\n Circuit Judges, and Lawrence L. Piersol, District Judge. *\\n\\n Opinion by Judge Fisher\\n\\n *\\n The Honorable Lawrence L. Piersol, United States District Judge\\nfor the District of South Dakota, sitting by designation.\\n\\f2 GILBERG V. CAL. CHECK CASHING STORES\\n\\n SUMMARY **\\n\\n\\n Fair Credit Reporting Act\\n\\n The panel affirmed in part and vacated in part the district\\ncourt’s summary judgment in favor of defendants in an\\naction under the Fair Credit Reporting Act, and remanded\\nfor further proceedings.\\n\\n FCRA requires employers who obtain a consumer report\\non a job applicant to provide the applicant with a “clear and\\nconspicuous disclosure” that they may obtain such a report\\n(the “clear and conspicuous” requirement) “in a document\\nthat consists solely of the disclosure” (the “standalone\\ndocument” requirement) before procuring the report.\\n\\n The panel held that a prospective employer violates\\nFCRA’s “standalone document” requirement by including\\nextraneous information relating to various state disclosure\\nrequirements in that disclosure. The panel concluded that\\ndefendant’s form violated this requirement, as well as the\\n“standalone document” requirement of California’s\\nInvestigative Consumer Reporting Agencies Act. The panel\\nfurther held that defendant’s disclosure did not satisfy\\nFCRA’s and ICRAA’s “clear and conspicuous”\\nrequirements because, although the disclosure was\\nconspicuous, it was not clear.\\n\\n The panel addressed additional issues in a concurrently-\\nfiled memorandum disposition.\\n\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\f GILBERG V. CAL. CHECK CASHING STORES 3\\n\\n COUNSEL\\n\\nH. Scott W. Leviant (argued), Thomas Segal, and Shaun\\nSetareh, Setareh Law Group, Beverly Hills, California, for\\nPlaintiff-Appellant.\\n\\nTimothy W. Snider (argued) and Chrystal S. Chase, Stoel\\nRives LLP, Portland, Oregon; Bryan L. Hawkins, Stoel\\nRives LLP, Sacramento, California; for Defendants-\\nAppellees.\\n\\n\\n OPINION\\n\\nFISHER, Circuit Judge:\\n\\n The widespread use of credit reports and background\\nchecks led Congress to pass the Fair Credit Reporting Act\\n(FCRA) to protect consumers’ privacy rights. FCRA\\nrequires employers who obtain a consumer report on a job\\napplicant to provide the applicant with a “clear and\\nconspicuous disclosure” that they may obtain such a report\\n(the “clear and conspicuous requirement”) “in a document\\nthat consists solely of the disclosure” (the “standalone\\ndocument requirement”) before procuring the report.\\n15 U.S.C. § 1681b(b)(2)(A)(i). This appeal requires us to\\ndecide two questions: (1) whether a prospective employer\\nmay satisfy FCRA’s standalone document requirement by\\nproviding job applicants with a disclosure containing\\nextraneous information in the form of various state\\ndisclosure requirements, and (2) whether the specific\\ndisclosure provided by the employer in this case satisfied the\\nclear and conspicuous requirement.\\n\\f4 GILBERG V. CAL. CHECK CASHING STORES\\n\\n We held in Syed v. M-I, LLC, 853 F.3d 492 (9th Cir.\\n2017), that FCRA contains “clear statutory language that the\\ndisclosure document must consist ‘solely’ of the disclosure.”\\nId. at 496. Consistent with Syed, we now hold that a\\nprospective employer violates FCRA’s standalone document\\nrequirement by including extraneous information relating to\\nvarious state disclosure requirements in that disclosure. We\\nalso hold that the disclosure at issue here is conspicuous but\\nnot clear. Accordingly, we affirm in part, vacate in part and\\nremand. 1\\n\\nI. Background\\n\\n In the process of applying for employment with\\nCheckSmart Financial, LLC, Desiree Gilberg completed a\\nthree-page form containing an employment application, a\\nmath screening and an employment history verification.\\nTwo weeks later, Gilberg signed a separate form, entitled\\n“Disclosure Regarding Background Investigation,” that is\\nthe subject of this litigation. A copy of the disclosure is\\nappended to this opinion. The form appears to have been\\nprinted in Arial Narrow, size 8 font.\\n\\n Because the legal sufficiency of the FCRA disclosure\\nprovided to Gilberg is in question, we include the full text of\\nthe disclosure:\\n\\n\\n\\n\\n 1\\n We address Gilberg’s remaining contentions in a concurrently filed\\nmemorandum disposition.\\n\\f GILBERG V. CAL. CHECK CASHING STORES 5\\n\\n DISCLOSURE REGARDING\\n BACKGROUND INVESTIGATION\\n\\n DISCLOSURE AND\\n ACKNOWLEDGMENT\\n\\n [IMPORTANT – PLEASE READ\\n CAREFULLY BEFORE SIGNING\\n ACKNOWLEDGMENT]\\n\\nCheckSmart Financial, LLC may obtain\\ninformation about you from a consumer\\nreporting agency for employment purposes.\\nThus, you may be the subject of a ‘consumer\\nreport’ and/or an ‘investigative consumer\\nreport’ which may include information about\\nyour character, general reputation, personal\\ncharacteristics, and/or mode of living, and\\nwhich can involve personal interviews with\\nsources such as your neighbors, friends, or\\nassociates. These reports may include\\nemployment history and reference checks,\\ncriminal and civil litigation history\\ninformation, motor vehicle records (‘driving\\nrecords’), sex offender status, credit reports,\\neducation verification, professional\\nlicensure, drug testing, Social Security\\nVerification, and information concerning\\nworkers’ compensation claims (only once a\\nconditional offer of employment has been\\nmade). Credit history will only be requested\\nwhere such information is substantially\\nrelated to the duties and responsibilities of the\\nposition for which you are applying. You\\nhave the right, upon written request made\\n\\f6 GILBERG V. CAL. CHECK CASHING STORES\\n\\n within a reasonable time after receipt of this\\n notice, to request whether a consumer report\\n has been run about you, and the nature and\\n scope of any investigative consumer report,\\n and request a copy of your report. Please be\\n advised that the nature and scope of the most\\n common form of investigative consumer\\n report obtained with regard to applicants for\\n employment is an investigation into your\\n education and/or employment history\\n conducted by Employment Screening\\n Services, 2500 Southlake Park, Birmingham,\\n AL 35244, toll-free 866.859.0143,\\n www.es2.com or another outside\\n organization. The scope of this notice and\\n authorization is all-encompassing; however,\\n allowing CheckSmart Financial, LLC to\\n obtain from any outside organization all\\n manner of consumer reports and investigative\\n consumer reports now and, if you are hired,\\n throughout the course of your employment to\\n the extent permitted by law. As a result, you\\n should carefully consider whether to exercise\\n your right to request disclosure of the nature\\n and scope of any investigative consumer\\n report.\\n\\n New York and Maine applicants or\\n employees only: You have the right to inspect\\n and receive a copy of any investigative\\n consumer report requested by CheckSmart\\n Financial, LLC by contacting the consumer\\n reporting agency identified above directly.\\n You may also contact the Company to\\n request the name, address and telephone\\n\\f GILBERG V. CAL. CHECK CASHING STORES 7\\n\\nnumber of the nearest unit of the consumer\\nreporting agency designated to handle\\ninquiries, which the Company shall provide\\nwithin 5 days.\\n\\nNew York applicants or employees only:\\nUpon request, you will be informed whether\\nor not a consumer report was requested by\\nCheckSmart Financial, LLC, and if such\\nreport was requested, informed of the name\\nand address of the consumer reporting\\nagency that furnished the report.\\n\\nOregon applicants or employees only:\\nInformation describing your rights under\\nfederal and Oregon law regarding consumer\\nidentity theft protection, the storage and\\ndisposal of your credit information, and\\nremedies available should you suspect or find\\nthat the Company has not maintained secured\\nrecords is available to you upon request.\\n\\nWashington State applicants or employees\\nonly: You also have the right to request from\\nthe consumer reporting agency a written\\nsummary of your rights and remedies under\\nthe Washington Fair Credit Reporting Act.\\n\\nACKNOWLEDGMENT AND AUTHORIZATION\\n\\nI acknowledge receipt of the NOTICE\\nREGARDING BACKGROUND\\nINVESTIGATION and A SUMMARY OF\\nYOUR RIGHTS UNDER THE FAIR\\nCREDIT REPORTING ACT and certify that\\n\\f8 GILBERG V. CAL. CHECK CASHING STORES\\n\\n I have read and understand both of those\\n documents. I hereby authorize the obtaining\\n of “consumer reports” and/or “investigative\\n consumer reports” at any time after receipt of\\n this authorization and, if I am hired,\\n throughout my employment. To this end, I\\n hereby authorize, without reservation, any\\n law enforcement agency, administrator, state\\n or federal agency, institution, school or\\n university (public or private), information\\n service bureau, employer, or insurance\\n company to furnish any and all background\\n information requested by ESS, 2500\\n Southlake Park, Birmingham, AL 35244, toll\\n free 866.859.0143, www.es2.com, or another\\n outside organization acting on behalf of\\n CheckSmart Financial, LLC, I agree that a\\n facsimile (“fax”), electronic or photographic\\n copy of this Authorization shall be as valid as\\n the original.\\n\\n California applicants or employees only: By\\n signing below, you also acknowledge receipt\\n of the DISCLOSURE REGARDING\\n BACKGROUND INVESTIGATION\\n PURSUANT TO CALIFORNIA LAW.\\n Please check this box if you would like to\\n receive a copy of an investigative consumer\\n report or consumer credit report if one is\\n obtained by the Company at no charge\\n whenever you have a right to receive such a\\n copy under California law.\\n []\\n Minnesota and Oklahoma applicants or\\n employees only: Check this box if you would\\n\\f GILBERG V. CAL. CHECK CASHING STORES 9\\n\\n like to receive a free copy of a consumer\\n report if one is obtained by the Company.\\n []\\n New York applicants or employees only: By\\n signing below, you also acknowledge receipt\\n of Article 23-A of the New York Correction\\n Law.\\n\\n After receiving Gilberg’s signed disclosure form,\\nCheckSmart obtained a criminal background report, which\\nconfirmed that Gilberg did not have a criminal record.\\nCheckSmart did not obtain a credit report. CheckSmart\\nhired Gilberg, who worked for CheckSmart for five months\\nbefore voluntarily terminating her employment.\\n\\n Gilberg then brought this putative class action against\\nCheckSmart, alleging two claims relevant here: (1) failure to\\nmake a proper FCRA disclosure and (2) failure to make a\\nproper disclosure under California’s Investigative Consumer\\nReporting Agencies Act (ICRAA).\\n\\n FCRA prohibits an employer from obtaining an\\napplicant’s consumer report without first providing the\\napplicant with a standalone, clear and conspicuous\\ndisclosure of its intention to do so and without obtaining the\\napplicant’s consent:\\n\\n Except as provided in subparagraph (B), a\\n person may not procure a consumer report, or\\n cause a consumer report to be procured, for\\n employment purposes with respect to any\\n consumer, unless –\\n\\n (i) a clear and conspicuous disclosure has\\n been made in writing to the consumer at any\\n time before the report is procured or caused\\n\\f10 GILBERG V. CAL. CHECK CASHING STORES\\n\\n to be procured, in a document that consists\\n solely of the disclosure, that a consumer\\n report may be obtained for employment\\n purposes; and\\n\\n (ii) the consumer has authorized in writing\\n (which authorization may be made on the\\n document referred to in clause (i)) the\\n procurement of the report by that person.\\n\\n15 U.S.C. § 1681b(b)(2)(A) (emphasis added).\\n\\n California imposes its own FCRA-like disclosure\\nrequirements. See Cal. Civ. Code §§ 1785.20(5)(a),\\n1786.16(a)(2)(B). Under ICRAA:\\n\\n (2) If, at any time, an investigative consumer\\n report is sought for employment purposes\\n other than suspicion of wrongdoing or\\n misconduct by the subject of the\\n investigation, the person seeking the\\n investigative consumer report may procure\\n the report, or cause the report to be made,\\n only if all of the following apply:\\n\\n ...\\n\\n (B) The person procuring or causing the\\n report to be made provides a clear and\\n conspicuous disclosure in writing to the\\n consumer at any time before the report is\\n procured or caused to be made in a\\n document that consists solely of the\\n disclosure, that:\\n\\f GILBERG V. CAL. CHECK CASHING STORES 11\\n\\n (i) An investigative consumer report\\n may be obtained.\\n\\n ...\\n\\n (C) The consumer has authorized in\\n writing the procurement of the report.\\n\\nId. § 1786.16(a)(2) (emphasis added). As relevant here, the\\nICRAA and FCRA provisions are identical.\\n\\n CheckSmart moved for summary judgment on both\\nclaims. The district court entered summary judgment\\nagainst Gilberg, concluding that CheckSmart’s disclosure\\nform complied with FCRA and ICRAA. Gilberg timely\\nappealed.\\n\\nII. Jurisdiction and Standard of Review\\n\\n We have jurisdiction under 28 U.S.C. § 1291. We\\nreview de novo an order granting summary judgment. See\\nTravelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d\\n1132, 1137 (9th Cir. 2009).\\n\\nIII. FCRA and ICRAA Standalone Document\\n Requirements\\n\\n A. The Relevant Disclosure Form\\n\\n Gilberg contends the relevant document for our analysis\\nincludes every form she filled out in the employment process\\n– a total of four pages. We disagree. Gilberg does not offer\\nany judicial authority, legislative history or dictionary\\ndefinition to support her argument that the word\\n“document,” as used in FCRA, encompasses the universe of\\nemployment application materials furnished by an employer\\n\\f12 GILBERG V. CAL. CHECK CASHING STORES\\n\\nto a prospective employee. She relies instead on California\\ncontract law, under which “[s]everal contracts relating to the\\nsame matters, between the same parties, and made as parts\\nof substantially one transaction, are to be taken together.”\\nCal. Civ. Code § 1642. Gilberg, however provides no\\npersuasive reason to extend this contract law principle to\\nFCRA’s definition of a document, and we decline to do so.\\nMoreover, under Gilberg’s proposed interpretation, it is\\ndifficult to see how an employer could ever provide an\\napplicant written application materials without violating\\nFCRA’s standalone document requirement.\\n\\n Gilberg’s three-page employment packet was distinct\\nfrom the one-page disclosure document. The relevant form\\nfor our analysis, therefore, is the disclosure form alone, not\\nthe entire four pages.\\n\\n B. CheckSmart’s disclosure form violates FCRA’s\\n standalone document requirement.\\n\\n Gilberg contends CheckSmart’s disclosure form violates\\nFCRA’s standalone document requirement. We agree.\\n\\n We analyzed FCRA’s standalone document requirement\\nin Syed v. M-I, LLC, 853 F.3d 492 (9th Cir. 2017). Syed held\\nthat “a prospective employer violates Section\\n1681b(b)(2)(A) when it procures a job applicant’s consumer\\nreport after including a liability waiver in the same document\\nas the statutorily mandated disclosure.” Id. at 496. We\\nconcluded the statute meant what it said: the required\\ndisclosure must be in a document that “consist[s] ‘solely’ of\\nthe disclosure.” Id. We based this holding on the statute’s\\nplain language, noting “[w]here congressional intent ‘has\\nbeen expressed in reasonably plain terms, that language must\\nordinarily be regarded as conclusive.’” Id. at 500 (quoting\\nGriffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570\\n\\f GILBERG V. CAL. CHECK CASHING STORES 13\\n\\n(1982)). “That other FCRA provisions mandating disclosure\\nomit the term ‘solely’ is further evidence that Congress\\nintended that term to carry meaning in 15 U.S.C.\\n§ 1681b(b)(2)(A)(i).” Id. at 501.\\n\\n CheckSmart contends Syed is not applicable here,\\nbecause the surplusage in Syed was a liability waiver, which\\ndid “not comport with the FCRA’s basic purpose” because\\nit pulled “the applicant’s attention away from his privacy\\nrights protected by the FCRA by calling his attention to the\\nrights he must forego if he signs the document.” Id. at 502.\\nCheckSmart argues its disclosure is distinguishable because\\nall of the extraneous information consists of other, state-\\nmandated disclosure information, which furthers rather than\\nundermines FCRA’s purpose.\\n\\n We disagree. Syed’s holding and statutory analysis were\\nnot limited to liability waivers; Syed considered the\\nstandalone requirement with regard to any surplusage. See\\nid. at 501. Syed grounded its analysis of the liability waiver\\nin its statutory analysis of the word “solely,” noting that\\nFCRA should not be read to have implied exceptions,\\nespecially when the exception – in that case, a liability\\nwaiver – was contrary to FCRA’s purpose. See id. at 501–\\n03. Syed also cautioned “against finding additional, implied\\nexceptions” simply because Congress had created one\\nexpress exception. Id. at 501. 2 Consistent with Syed, we\\ndecline CheckSmart’s invitation to create an implied\\nexception here.\\n\\n\\n 2\\n FCRA’s one express exception to the standalone document\\nrequirement, specified in 15 U.S.C. § 1681b(b)(2)(A)(ii), allows the\\napplicant to “authorize in writing” the procurement of a consumer report\\non the same document as the disclosure.\\n\\f14 GILBERG V. CAL. CHECK CASHING STORES\\n\\n Although CheckSmart contends its disclosure form is\\nconsistent with the congressional purpose of FCRA because\\nit helps applicants understand their state and federal rights,\\npurpose does not override plain meaning. As Syed\\nexplained, congressional intent “has been expressed in\\nreasonably plain terms” and “that language must ordinarily\\nbe regarded as conclusive.” Id. at 500 (quoting Griffin,\\n458 U.S. at 570). The ordinary meaning of “solely” is\\n“[a]lone; singly” or “[e]ntirely; exclusively.” The American\\nHeritage Dictionary of the English Language 1666 (5th ed.\\n2011). Because CheckSmart’s disclosure form does not\\nconsist solely of the FCRA disclosure, it does not satisfy\\nFCRA’s standalone document requirement.\\n\\n CheckSmart, moreover, fails to explain how the surplus\\nlanguage in its disclosure form comports with FCRA’s\\npurpose. Its disclosure refers not only to rights under FCRA\\nand under ICRAA applicable to Gilberg, but also to rights\\nunder state laws inapplicable to Gilberg and to extraneous\\ndocuments that are not part of the FCRA-mandated\\ndisclosure – e.g., a “Notice Regarding Background\\nInvestigation” and a “Summary of Your Rights Under the\\nFair Credit Reporting Act.” Because the presence of this\\nextraneous information is as likely to confuse as it is to\\ninform, it does not further FCRA’s purpose.\\n\\n CheckSmart urges us to follow the district court’s\\ndecision in Noori v. Vivint, Inc., No. CV 16-5491 PA\\n(FFMX), 2016 WL 9083368 (C.D. Cal. Sept. 6, 2016), aff’d\\non other grounds, 726 F. App’x 624 (9th Cir. 2018), which\\nreasoned that the inclusion of information “closely related”\\nto FCRA’s disclosure requirements does not violate the\\nstandalone document requirement. Id. at *5. Our\\nsubsequent decision in Syed, however, forecloses that\\napproach. Noori, moreover, did not explain how to\\n\\f GILBERG V. CAL. CHECK CASHING STORES 15\\n\\ndetermine what information would be “closely related” to\\nFCRA’s disclosure requirements. Indeed, even “related”\\ninformation may distract or confuse the reader.\\n\\n In sum, Syed holds that the standalone requirement\\nforecloses implicit exceptions. The statute’s one express\\nexception does not apply here, and CheckSmart’s disclosure\\ncontains extraneous and irrelevant information beyond what\\nFCRA itself requires. The disclosure therefore violates\\nFCRA’s standalone document requirement. Even if\\ncongressional purpose were relevant, much of the surplusage\\nin CheckSmart’s disclosure form does not effectuate the\\npurposes of FCRA. The district court therefore erred in\\nconcluding that CheckSmart’s disclosure form satisfies\\nFCRA’s standalone document requirement.\\n\\n C. CheckSmart’s disclosure form also violates ICRAA’s\\n standalone document requirement.\\n\\n As the parties appear to agree, the standalone document\\nrequirements under FCRA and ICRAA are identical. Thus,\\nbecause we conclude CheckSmart’s disclosure violates\\nFCRA, we conclude it violates ICRAA’s standalone\\ndocument requirement as well.\\n\\nIV. CheckSmart’s disclosure form was not “clear and\\n conspicuous.”\\n\\n FCRA and ICRAA require a disclosure form to be “clear\\nand conspicuous.” 15 U.S.C. § 1681b(b)(2)(A)(i); Cal. Civ.\\nCode § 1786.16(a)(2)(B). Neither statute, however, defines\\nthe term “clear and conspicuous.”\\n\\n Like other circuits, we “draw upon the wealth of\\n[Uniform Commercial Code (UCC)] and [Truth in Lending\\nAct (TILA)] case law in determining the meaning of ‘clear\\n\\f16 GILBERG V. CAL. CHECK CASHING STORES\\n\\nand conspicuous’ under the FCRA.” Cole v. U.S. Capital,\\n389 F.3d 719, 730 (7th Cir. 2004); see also Stevenson v.\\nTRW Inc., 987 F.2d 288, 295–96 (5th Cir. 1993) (interpreting\\n“clear and conspicuous” language used in 15 U.S.C.\\n§ 1681i(d) with reference to TILA and UCC cases). We\\nadopt our “clear and conspicuous” analysis from Rubio v.\\nCapital One Bank, 613 F.3d 1195 (9th Cir. 2010), a TILA\\ndisclosure case. In Rubio, we explained that clear means\\n“reasonably understandable.” Id. at 1200 (citation omitted);\\naccord Applebaum v. Nissan Motor Acceptance Corp.,\\n226 F.3d 214, 220 (3d Cir. 2000) (holding in the TILA\\ncontext that “clear” means the “language used in a disclosure\\nmust be cast in [a] reasonably understandable form.”\\n(internal quotation marks omitted)). Conspicuous means\\n“readily noticeable to the consumer.” Rubio, 613 F.3d at\\n1200 (citation omitted). Because the parties do not argue\\nthat ICRAA’s clear and conspicuous requirement differs\\nfrom FCRA’s, we apply those definitions to Gilberg’s\\nICRAA claim as well.\\n\\n Although the “clear and conspicuous” requirement\\nimposes a single statutory obligation, we may analyze each\\nprong separately, see, e.g., In re Bassett, 285 F.3d 882, 885\\n(9th Cir. 2002) (interpreting 11 U.S.C. § 524), and we do so\\nhere. In the TILA context, we have said that clarity and\\nconspicuousness are questions of law. See Rubio, 613 F.3d\\nat 1200. Because neither party suggests we should treat\\nFCRA differently, we assume for the purposes of our\\nanalysis, without deciding, that clarity and conspicuousness\\nunder FCRA present questions of law rather than fact.\\n\\n A. CheckSmart’s disclosure form was not clear.\\n\\n CheckSmart’s disclosure form is not reasonably\\nunderstandable for two distinct reasons. First, the disclosure\\n\\f GILBERG V. CAL. CHECK CASHING STORES 17\\n\\nform contains language that a reasonable person would not\\nunderstand. It says:\\n\\n The scope of this notice and authorization is\\n all-encompassing; however, allowing\\n CheckSmart Financial, LLC to obtain from\\n any outside organization all manner of\\n consumer reports and investigative consumer\\n reports now and, if you are hired, throughout\\n the course of your employment to the extent\\n permitted by law.\\n\\nThe beginning of this sentence does not explain how the\\nauthorization is all-encompassing and how that would affect\\nan applicant’s rights. The second half of the sentence,\\nfollowing the semicolon, lacks a subject and is incomplete.\\nIt suggests that there may be some limits on the all-\\nencompassing nature of the authorization, but it does not\\nidentify what those limits might be.\\n\\n Second, the disclosure would confuse a reasonable\\nreader because it combines federal and state disclosures.\\nThe disclosure, for example, states: “New York and Maine\\napplicants or employees only: You have the right to inspect\\nand receive a copy of any investigative consumer report\\nrequested by CheckSmart Financial, LLC by contacting the\\nconsumer reporting agency identified above directly.” A\\nreasonable reader might think that only New York and\\nMaine applicants could contact the consumer reporting\\nagency to get a copy of the report. Such an understanding\\nwould be contrary to both FCRA and ICRAA. See 15 U.S.C.\\n§ 1681m(3)–(4); Cal. Civ. Code § 1786.22.\\n\\n We hold, therefore, that the district court erred by\\ndeeming CheckSmart’s disclosure form clear.\\n\\f18 GILBERG V. CAL. CHECK CASHING STORES\\n\\n B. CheckSmart’s disclosure form was conspicuous.\\n\\n The district court properly concluded, however, that\\nCheckSmart’s disclosure form is conspicuous. As noted,\\nconspicuous means “readily noticeable to the consumer.”\\nRubio, 613 F.3d at 1200. CheckSmart capitalized, bolded\\nand underlined the headings for each section of the\\ndisclosure and labeled the form so an applicant could see\\nwhat she was signing. Although the font is small and\\ncramped (we think inadvisably so), it is legible. All relevant\\ninformation appears on the front of the page and the headings\\nhelp applicants understand the purpose of the form. The\\ndisclosure, therefore, is conspicuous.\\n\\n Nevertheless, because CheckSmart’s disclosure form\\nwas not both clear and conspicuous, the district erred in\\ngranting CheckSmart’s motion for summary judgment with\\nregard to the FCRA and ICRAA “clear and conspicuous”\\nrequirements.\\n\\nV. Conclusion\\n\\n We hold that the district court erred by concluding that\\nthe standalone document requirements of FCRA and ICRAA\\nwere satisfied here. We further hold that CheckSmart’s\\ndisclosure satisfies the FCRA and ICRAA requirements for\\nconspicuousness but not for clarity. For these reasons, and\\nthe reasons stated in our contemporaneously filed\\nmemorandum disposition, we affirm in part and vacate in\\npart the judgment of the district court, and we remand for\\nfurther proceedings consistent with these dispositions. Each\\nparty shall bear its own costs of appeal.\\n\\n AFFIRMED IN PART; VACATED IN PART;\\nREMANDED.\\n\\fAppendix A\\n\\f Case 2:15-cv-02309-JAM-AC Document 49-1 Filed 05/09/17 Page 40 of 49\\n\\n\\n\\n\\n(5\\u0003\\u0015\\u0018\\u0013 (5\\u0003\\u0015\\u0018\\u0013 (5\\u0003\\u0015\\u0018\\u0013\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4362711/\", \"author_raw\": \"FISHER, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"RAYMOND C FISHER"},"judge2":{"kind":"string","value":"MILAN D SMITH JR"},"judge3":{"kind":"string","value":"LAWRENCE L PIERSOL"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4585458/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Desiree Gilberg v. Cal. Check Cashing Stores, LLC\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n DESIREE GILBERG, on behalf of No. 17-16263\n herself, all others similarly situated,\n Plaintiff-Appellant, D.C. No.\n 2:15-cv-02309-\n v. JAM-AC\n\n CALIFORNIA CHECK CASHING\n STORES, LLC, a California OPINION\n corporation; CHECKSMART\n FINANCIAL, LLC, a Delaware limited\n liability company,\n Defendants-Appellees.\n\n Appeal from the United States District Court\n for the Eastern District of California\n John A. Mendez, District Judge, Presiding\n\n Argued and Submitted November 15, 2018\n San Francisco, California\n\n Filed January 29, 2019\n\n Before: Raymond C. Fisher and Milan D. Smith, Jr.,\n Circuit Judges, and Lawrence L. Piersol, District Judge. *\n\n Opinion by Judge Fisher\n\n *\n The Honorable Lawrence L. Piersol, United States District Judge\nfor the District of South Dakota, sitting by designation.\n\f2 GILBERG V. CAL. CHECK CASHING STORES\n\n SUMMARY **\n\n\n Fair Credit Reporting Act\n\n The panel affirmed in part and vacated in part the district\ncourt’s summary judgment in favor of defendants in an\naction under the Fair Credit Reporting Act, and remanded\nfor further proceedings.\n\n FCRA requires employers who obtain a consumer report\non a job applicant to provide the applicant with a “clear and\nconspicuous disclosure” that they may obtain such a report\n(the “clear and conspicuous” requirement) “in a document\nthat consists solely of the disclosure” (the “standalone\ndocument” requirement) before procuring the report.\n\n The panel held that a prospective employer violates\nFCRA’s “standalone document” requirement by including\nextraneous information relating to various state disclosure\nrequirements in that disclosure. The panel concluded that\ndefendant’s form violated this requirement, as well as the\n“standalone document” requirement of California’s\nInvestigative Consumer Reporting Agencies Act. The panel\nfurther held that defendant’s disclosure did not satisfy\nFCRA’s and ICRAA’s “clear and conspicuous”\nrequirements because, although the disclosure was\nconspicuous, it was not clear.\n\n The panel addressed additional issues in a concurrently-\nfiled memorandum disposition.\n\n **\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f GILBERG V. CAL. CHECK CASHING STORES 3\n\n COUNSEL\n\nH. Scott W. Leviant (argued), Thomas Segal, and Shaun\nSetareh, Setareh Law Group, Beverly Hills, California, for\nPlaintiff-Appellant.\n\nTimothy W. Snider (argued) and Chrystal S. Chase, Stoel\nRives LLP, Portland, Oregon; Bryan L. Hawkins, Stoel\nRives LLP, Sacramento, California; for Defendants-\nAppellees.\n\n\n OPINION\n\nFISHER, Circuit Judge:\n\n The widespread use of credit reports and background\nchecks led Congress to pass the Fair Credit Reporting Act\n(FCRA) to protect consumers’ privacy rights. FCRA\nrequires employers who obtain a consumer report on a job\napplicant to provide the applicant with a “clear and\nconspicuous disclosure” that they may obtain such a report\n(the “clear and conspicuous requirement”) “in a document\nthat consists solely of the disclosure” (the “standalone\ndocument requirement”) before procuring the report.\n15 U.S.C. § 1681b(b)(2)(A)(i). This appeal requires us to\ndecide two questions: (1) whether a prospective employer\nmay satisfy FCRA’s standalone document requirement by\nproviding job applicants with a disclosure containing\nextraneous information in the form of various state\ndisclosure requirements, and (2) whether the specific\ndisclosure provided by the employer in this case satisfied the\nclear and conspicuous requirement.\n\f4 GILBERG V. CAL. CHECK CASHING STORES\n\n We held in Syed v. M-I, LLC, 853 F.3d 492 (9th Cir.\n2017), that FCRA contains “clear statutory language that the\ndisclosure document must consist ‘solely’ of the disclosure.”\nId. at 496. Consistent with Syed, we now hold that a\nprospective employer violates FCRA’s standalone document\nrequirement by including extraneous information relating to\nvarious state disclosure requirements in that disclosure. We\nalso hold that the disclosure at issue here is conspicuous but\nnot clear. Accordingly, we affirm in part, vacate in part and\nremand. 1\n\nI. Background\n\n In the process of applying for employment with\nCheckSmart Financial, LLC, Desiree Gilberg completed a\nthree-page form containing an employment application, a\nmath screening and an employment history verification.\nTwo weeks later, Gilberg signed a separate form, entitled\n“Disclosure Regarding Background Investigation,” that is\nthe subject of this litigation. A copy of the disclosure is\nappended to this opinion. The form appears to have been\nprinted in Arial Narrow, size 8 font.\n\n Because the legal sufficiency of the FCRA disclosure\nprovided to Gilberg is in question, we include the full text of\nthe disclosure:\n\n\n\n\n 1\n We address Gilberg’s remaining contentions in a concurrently filed\nmemorandum disposition.\n\f GILBERG V. CAL. CHECK CASHING STORES 5\n\n DISCLOSURE REGARDING\n BACKGROUND INVESTIGATION\n\n DISCLOSURE AND\n ACKNOWLEDGMENT\n\n [IMPORTANT – PLEASE READ\n CAREFULLY BEFORE SIGNING\n ACKNOWLEDGMENT]\n\nCheckSmart Financial, LLC may obtain\ninformation about you from a consumer\nreporting agency for employment purposes.\nThus, you may be the subject of a ‘consumer\nreport’ and/or an ‘investigative consumer\nreport’ which may include information about\nyour character, general reputation, personal\ncharacteristics, and/or mode of living, and\nwhich can involve personal interviews with\nsources such as your neighbors, friends, or\nassociates. These reports may include\nemployment history and reference checks,\ncriminal and civil litigation history\ninformation, motor vehicle records (‘driving\nrecords’), sex offender status, credit reports,\neducation verification, professional\nlicensure, drug testing, Social Security\nVerification, and information concerning\nworkers’ compensation claims (only once a\nconditional offer of employment has been\nmade). Credit history will only be requested\nwhere such information is substantially\nrelated to the duties and responsibilities of the\nposition for which you are applying. You\nhave the right, upon written request made\n\f6 GILBERG V. CAL. CHECK CASHING STORES\n\n within a reasonable time after receipt of this\n notice, to request whether a consumer report\n has been run about you, and the nature and\n scope of any investigative consumer report,\n and request a copy of your report. Please be\n advised that the nature and scope of the most\n common form of investigative consumer\n report obtained with regard to applicants for\n employment is an investigation into your\n education and/or employment history\n conducted by Employment Screening\n Services, 2500 Southlake Park, Birmingham,\n AL 35244, toll-free 866.859.0143,\n www.es2.com or another outside\n organization. The scope of this notice and\n authorization is all-encompassing; however,\n allowing CheckSmart Financial, LLC to\n obtain from any outside organization all\n manner of consumer reports and investigative\n consumer reports now and, if you are hired,\n throughout the course of your employment to\n the extent permitted by law. As a result, you\n should carefully consider whether to exercise\n your right to request disclosure of the nature\n and scope of any investigative consumer\n report.\n\n New York and Maine applicants or\n employees only: You have the right to inspect\n and receive a copy of any investigative\n consumer report requested by CheckSmart\n Financial, LLC by contacting the consumer\n reporting agency identified above directly.\n You may also contact the Company to\n request the name, address and telephone\n\f GILBERG V. CAL. CHECK CASHING STORES 7\n\nnumber of the nearest unit of the consumer\nreporting agency designated to handle\ninquiries, which the Company shall provide\nwithin 5 days.\n\nNew York applicants or employees only:\nUpon request, you will be informed whether\nor not a consumer report was requested by\nCheckSmart Financial, LLC, and if such\nreport was requested, informed of the name\nand address of the consumer reporting\nagency that furnished the report.\n\nOregon applicants or employees only:\nInformation describing your rights under\nfederal and Oregon law regarding consumer\nidentity theft protection, the storage and\ndisposal of your credit information, and\nremedies available should you suspect or find\nthat the Company has not maintained secured\nrecords is available to you upon request.\n\nWashington State applicants or employees\nonly: You also have the right to request from\nthe consumer reporting agency a written\nsummary of your rights and remedies under\nthe Washington Fair Credit Reporting Act.\n\nACKNOWLEDGMENT AND AUTHORIZATION\n\nI acknowledge receipt of the NOTICE\nREGARDING BACKGROUND\nINVESTIGATION and A SUMMARY OF\nYOUR RIGHTS UNDER THE FAIR\nCREDIT REPORTING ACT and certify that\n\f8 GILBERG V. CAL. CHECK CASHING STORES\n\n I have read and understand both of those\n documents. I hereby authorize the obtaining\n of “consumer reports” and/or “investigative\n consumer reports” at any time after receipt of\n this authorization and, if I am hired,\n throughout my employment. To this end, I\n hereby authorize, without reservation, any\n law enforcement agency, administrator, state\n or federal agency, institution, school or\n university (public or private), information\n service bureau, employer, or insurance\n company to furnish any and all background\n information requested by ESS, 2500\n Southlake Park, Birmingham, AL 35244, toll\n free 866.859.0143, www.es2.com, or another\n outside organization acting on behalf of\n CheckSmart Financial, LLC, I agree that a\n facsimile (“fax”), electronic or photographic\n copy of this Authorization shall be as valid as\n the original.\n\n California applicants or employees only: By\n signing below, you also acknowledge receipt\n of the DISCLOSURE REGARDING\n BACKGROUND INVESTIGATION\n PURSUANT TO CALIFORNIA LAW.\n Please check this box if you would like to\n receive a copy of an investigative consumer\n report or consumer credit report if one is\n obtained by the Company at no charge\n whenever you have a right to receive such a\n copy under California law.\n []\n Minnesota and Oklahoma applicants or\n employees only: Check this box if you would\n\f GILBERG V. CAL. CHECK CASHING STORES 9\n\n like to receive a free copy of a consumer\n report if one is obtained by the Company.\n []\n New York applicants or employees only: By\n signing below, you also acknowledge receipt\n of Article 23-A of the New York Correction\n Law.\n\n After receiving Gilberg’s signed disclosure form,\nCheckSmart obtained a criminal background report, which\nconfirmed that Gilberg did not have a criminal record.\nCheckSmart did not obtain a credit report. CheckSmart\nhired Gilberg, who worked for CheckSmart for five months\nbefore voluntarily terminating her employment.\n\n Gilberg then brought this putative class action against\nCheckSmart, alleging two claims relevant here: (1) failure to\nmake a proper FCRA disclosure and (2) failure to make a\nproper disclosure under California’s Investigative Consumer\nReporting Agencies Act (ICRAA).\n\n FCRA prohibits an employer from obtaining an\napplicant’s consumer report without first providing the\napplicant with a standalone, clear and conspicuous\ndisclosure of its intention to do so and without obtaining the\napplicant’s consent:\n\n Except as provided in subparagraph (B), a\n person may not procure a consumer report, or\n cause a consumer report to be procured, for\n employment purposes with respect to any\n consumer, unless –\n\n (i) a clear and conspicuous disclosure has\n been made in writing to the consumer at any\n time before the report is procured or caused\n\f10 GILBERG V. CAL. CHECK CASHING STORES\n\n to be procured, in a document that consists\n solely of the disclosure, that a consumer\n report may be obtained for employment\n purposes; and\n\n (ii) the consumer has authorized in writing\n (which authorization may be made on the\n document referred to in clause (i)) the\n procurement of the report by that person.\n\n15 U.S.C. § 1681b(b)(2)(A) (emphasis added).\n\n California imposes its own FCRA-like disclosure\nrequirements. See Cal. Civ. Code §§ 1785.20(5)(a),\n1786.16(a)(2)(B). Under ICRAA:\n\n (2) If, at any time, an investigative consumer\n report is sought for employment purposes\n other than suspicion of wrongdoing or\n misconduct by the subject of the\n investigation, the person seeking the\n investigative consumer report may procure\n the report, or cause the report to be made,\n only if all of the following apply:\n\n ...\n\n (B) The person procuring or causing the\n report to be made provides a clear and\n conspicuous disclosure in writing to the\n consumer at any time before the report is\n procured or caused to be made in a\n document that consists solely of the\n disclosure, that:\n\f GILBERG V. CAL. CHECK CASHING STORES 11\n\n (i) An investigative consumer report\n may be obtained.\n\n ...\n\n (C) The consumer has authorized in\n writing the procurement of the report.\n\nId. § 1786.16(a)(2) (emphasis added). As relevant here, the\nICRAA and FCRA provisions are identical.\n\n CheckSmart moved for summary judgment on both\nclaims. The district court entered summary judgment\nagainst Gilberg, concluding that CheckSmart’s disclosure\nform complied with FCRA and ICRAA. Gilberg timely\nappealed.\n\nII. Jurisdiction and Standard of Review\n\n We have jurisdiction under 28 U.S.C. § 1291. We\nreview de novo an order granting summary judgment. See\nTravelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d\n1132, 1137 (9th Cir. 2009).\n\nIII. FCRA and ICRAA Standalone Document\n Requirements\n\n A. The Relevant Disclosure Form\n\n Gilberg contends the relevant document for our analysis\nincludes every form she filled out in the employment process\n– a total of four pages. We disagree. Gilberg does not offer\nany judicial authority, legislative history or dictionary\ndefinition to support her argument that the word\n“document,” as used in FCRA, encompasses the universe of\nemployment application materials furnished by an employer\n\f12 GILBERG V. CAL. CHECK CASHING STORES\n\nto a prospective employee. She relies instead on California\ncontract law, under which “[s]everal contracts relating to the\nsame matters, between the same parties, and made as parts\nof substantially one transaction, are to be taken together.”\nCal. Civ. Code § 1642. Gilberg, however provides no\npersuasive reason to extend this contract law principle to\nFCRA’s definition of a document, and we decline to do so.\nMoreover, under Gilberg’s proposed interpretation, it is\ndifficult to see how an employer could ever provide an\napplicant written application materials without violating\nFCRA’s standalone document requirement.\n\n Gilberg’s three-page employment packet was distinct\nfrom the one-page disclosure document. The relevant form\nfor our analysis, therefore, is the disclosure form alone, not\nthe entire four pages.\n\n B. CheckSmart’s disclosure form violates FCRA’s\n standalone document requirement.\n\n Gilberg contends CheckSmart’s disclosure form violates\nFCRA’s standalone document requirement. We agree.\n\n We analyzed FCRA’s standalone document requirement\nin Syed v. M-I, LLC, 853 F.3d 492 (9th Cir. 2017). Syed held\nthat “a prospective employer violates Section\n1681b(b)(2)(A) when it procures a job applicant’s consumer\nreport after including a liability waiver in the same document\nas the statutorily mandated disclosure.” Id. at 496. We\nconcluded the statute meant what it said: the required\ndisclosure must be in a document that “consist[s] ‘solely’ of\nthe disclosure.” Id. We based this holding on the statute’s\nplain language, noting “[w]here congressional intent ‘has\nbeen expressed in reasonably plain terms, that language must\nordinarily be regarded as conclusive.’” Id. at 500 (quoting\nGriffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570\n\f GILBERG V. CAL. CHECK CASHING STORES 13\n\n(1982)). “That other FCRA provisions mandating disclosure\nomit the term ‘solely’ is further evidence that Congress\nintended that term to carry meaning in 15 U.S.C.\n§ 1681b(b)(2)(A)(i).” Id. at 501.\n\n CheckSmart contends Syed is not applicable here,\nbecause the surplusage in Syed was a liability waiver, which\ndid “not comport with the FCRA’s basic purpose” because\nit pulled “the applicant’s attention away from his privacy\nrights protected by the FCRA by calling his attention to the\nrights he must forego if he signs the document.” Id. at 502.\nCheckSmart argues its disclosure is distinguishable because\nall of the extraneous information consists of other, state-\nmandated disclosure information, which furthers rather than\nundermines FCRA’s purpose.\n\n We disagree. Syed’s holding and statutory analysis were\nnot limited to liability waivers; Syed considered the\nstandalone requirement with regard to any surplusage. See\nid. at 501. Syed grounded its analysis of the liability waiver\nin its statutory analysis of the word “solely,” noting that\nFCRA should not be read to have implied exceptions,\nespecially when the exception – in that case, a liability\nwaiver – was contrary to FCRA’s purpose. See id. at 501–\n03. Syed also cautioned “against finding additional, implied\nexceptions” simply because Congress had created one\nexpress exception. Id. at 501. 2 Consistent with Syed, we\ndecline CheckSmart’s invitation to create an implied\nexception here.\n\n\n 2\n FCRA’s one express exception to the standalone document\nrequirement, specified in 15 U.S.C. § 1681b(b)(2)(A)(ii), allows the\napplicant to “authorize in writing” the procurement of a consumer report\non the same document as the disclosure.\n\f14 GILBERG V. CAL. CHECK CASHING STORES\n\n Although CheckSmart contends its disclosure form is\nconsistent with the congressional purpose of FCRA because\nit helps applicants understand their state and federal rights,\npurpose does not override plain meaning. As Syed\nexplained, congressional intent “has been expressed in\nreasonably plain terms” and “that language must ordinarily\nbe regarded as conclusive.” Id. at 500 (quoting Griffin,\n458 U.S. at 570). The ordinary meaning of “solely” is\n“[a]lone; singly” or “[e]ntirely; exclusively.” The American\nHeritage Dictionary of the English Language 1666 (5th ed.\n2011). Because CheckSmart’s disclosure form does not\nconsist solely of the FCRA disclosure, it does not satisfy\nFCRA’s standalone document requirement.\n\n CheckSmart, moreover, fails to explain how the surplus\nlanguage in its disclosure form comports with FCRA’s\npurpose. Its disclosure refers not only to rights under FCRA\nand under ICRAA applicable to Gilberg, but also to rights\nunder state laws inapplicable to Gilberg and to extraneous\ndocuments that are not part of the FCRA-mandated\ndisclosure – e.g., a “Notice Regarding Background\nInvestigation” and a “Summary of Your Rights Under the\nFair Credit Reporting Act.” Because the presence of this\nextraneous information is as likely to confuse as it is to\ninform, it does not further FCRA’s purpose.\n\n CheckSmart urges us to follow the district court’s\ndecision in Noori v. Vivint, Inc., No. CV 16-5491 PA\n(FFMX), 2016 WL 9083368 (C.D. Cal. Sept. 6, 2016), aff’d\non other grounds, 726 F. App’x 624 (9th Cir. 2018), which\nreasoned that the inclusion of information “closely related”\nto FCRA’s disclosure requirements does not violate the\nstandalone document requirement. Id. at *5. Our\nsubsequent decision in Syed, however, forecloses that\napproach. Noori, moreover, did not explain how to\n\f GILBERG V. CAL. CHECK CASHING STORES 15\n\ndetermine what information would be “closely related” to\nFCRA’s disclosure requirements. Indeed, even “related”\ninformation may distract or confuse the reader.\n\n In sum, Syed holds that the standalone requirement\nforecloses implicit exceptions. The statute’s one express\nexception does not apply here, and CheckSmart’s disclosure\ncontains extraneous and irrelevant information beyond what\nFCRA itself requires. The disclosure therefore violates\nFCRA’s standalone document requirement. Even if\ncongressional purpose were relevant, much of the surplusage\nin CheckSmart’s disclosure form does not effectuate the\npurposes of FCRA. The district court therefore erred in\nconcluding that CheckSmart’s disclosure form satisfies\nFCRA’s standalone document requirement.\n\n C. CheckSmart’s disclosure form also violates ICRAA’s\n standalone document requirement.\n\n As the parties appear to agree, the standalone document\nrequirements under FCRA and ICRAA are identical. Thus,\nbecause we conclude CheckSmart’s disclosure violates\nFCRA, we conclude it violates ICRAA’s standalone\ndocument requirement as well.\n\nIV. CheckSmart’s disclosure form was not “clear and\n conspicuous.”\n\n FCRA and ICRAA require a disclosure form to be “clear\nand conspicuous.” 15 U.S.C. § 1681b(b)(2)(A)(i); Cal. Civ.\nCode § 1786.16(a)(2)(B). Neither statute, however, defines\nthe term “clear and conspicuous.”\n\n Like other circuits, we “draw upon the wealth of\n[Uniform Commercial Code (UCC)] and [Truth in Lending\nAct (TILA)] case law in determining the meaning of ‘clear\n\f16 GILBERG V. CAL. CHECK CASHING STORES\n\nand conspicuous’ under the FCRA.” Cole v. U.S. Capital,\n389 F.3d 719, 730 (7th Cir. 2004); see also Stevenson v.\nTRW Inc., 987 F.2d 288, 295–96 (5th Cir. 1993) (interpreting\n“clear and conspicuous” language used in 15 U.S.C.\n§ 1681i(d) with reference to TILA and UCC cases). We\nadopt our “clear and conspicuous” analysis from Rubio v.\nCapital One Bank, 613 F.3d 1195 (9th Cir. 2010), a TILA\ndisclosure case. In Rubio, we explained that clear means\n“reasonably understandable.” Id. at 1200 (citation omitted);\naccord Applebaum v. Nissan Motor Acceptance Corp.,\n226 F.3d 214, 220 (3d Cir. 2000) (holding in the TILA\ncontext that “clear” means the “language used in a disclosure\nmust be cast in [a] reasonably understandable form.”\n(internal quotation marks omitted)). Conspicuous means\n“readily noticeable to the consumer.” Rubio, 613 F.3d at\n1200 (citation omitted). Because the parties do not argue\nthat ICRAA’s clear and conspicuous requirement differs\nfrom FCRA’s, we apply those definitions to Gilberg’s\nICRAA claim as well.\n\n Although the “clear and conspicuous” requirement\nimposes a single statutory obligation, we may analyze each\nprong separately, see, e.g., In re Bassett, 285 F.3d 882, 885\n(9th Cir. 2002) (interpreting 11 U.S.C. § 524), and we do so\nhere. In the TILA context, we have said that clarity and\nconspicuousness are questions of law. See Rubio, 613 F.3d\nat 1200. Because neither party suggests we should treat\nFCRA differently, we assume for the purposes of our\nanalysis, without deciding, that clarity and conspicuousness\nunder FCRA present questions of law rather than fact.\n\n A. CheckSmart’s disclosure form was not clear.\n\n CheckSmart’s disclosure form is not reasonably\nunderstandable for two distinct reasons. First, the disclosure\n\f GILBERG V. CAL. CHECK CASHING STORES 17\n\nform contains language that a reasonable person would not\nunderstand. It says:\n\n The scope of this notice and authorization is\n all-encompassing; however, allowing\n CheckSmart Financial, LLC to obtain from\n any outside organization all manner of\n consumer reports and investigative consumer\n reports now and, if you are hired, throughout\n the course of your employment to the extent\n permitted by law.\n\nThe beginning of this sentence does not explain how the\nauthorization is all-encompassing and how that would affect\nan applicant’s rights. The second half of the sentence,\nfollowing the semicolon, lacks a subject and is incomplete.\nIt suggests that there may be some limits on the all-\nencompassing nature of the authorization, but it does not\nidentify what those limits might be.\n\n Second, the disclosure would confuse a reasonable\nreader because it combines federal and state disclosures.\nThe disclosure, for example, states: “New York and Maine\napplicants or employees only: You have the right to inspect\nand receive a copy of any investigative consumer report\nrequested by CheckSmart Financial, LLC by contacting the\nconsumer reporting agency identified above directly.” A\nreasonable reader might think that only New York and\nMaine applicants could contact the consumer reporting\nagency to get a copy of the report. Such an understanding\nwould be contrary to both FCRA and ICRAA. See 15 U.S.C.\n§ 1681m(3)–(4); Cal. Civ. Code § 1786.22.\n\n We hold, therefore, that the district court erred by\ndeeming CheckSmart’s disclosure form clear.\n\f18 GILBERG V. CAL. CHECK CASHING STORES\n\n B. CheckSmart’s disclosure form was conspicuous.\n\n The district court properly concluded, however, that\nCheckSmart’s disclosure form is conspicuous. As noted,\nconspicuous means “readily noticeable to the consumer.”\nRubio, 613 F.3d at 1200. CheckSmart capitalized, bolded\nand underlined the headings for each section of the\ndisclosure and labeled the form so an applicant could see\nwhat she was signing. Although the font is small and\ncramped (we think inadvisably so), it is legible. All relevant\ninformation appears on the front of the page and the headings\nhelp applicants understand the purpose of the form. The\ndisclosure, therefore, is conspicuous.\n\n Nevertheless, because CheckSmart’s disclosure form\nwas not both clear and conspicuous, the district erred in\ngranting CheckSmart’s motion for summary judgment with\nregard to the FCRA and ICRAA “clear and conspicuous”\nrequirements.\n\nV. Conclusion\n\n We hold that the district court erred by concluding that\nthe standalone document requirements of FCRA and ICRAA\nwere satisfied here. We further hold that CheckSmart’s\ndisclosure satisfies the FCRA and ICRAA requirements for\nconspicuousness but not for clarity. For these reasons, and\nthe reasons stated in our contemporaneously filed\nmemorandum disposition, we affirm in part and vacate in\npart the judgment of the district court, and we remand for\nfurther proceedings consistent with these dispositions. Each\nparty shall bear its own costs of appeal.\n\n AFFIRMED IN PART; VACATED IN PART;\nREMANDED.\n\fAppendix A\n\f Case 2:15-cv-02309-JAM-AC Document 49-1 Filed 05/09/17 Page 40 of 49\n\n\n\n\n(5\u0003\u0015\u0018\u0013 (5\u0003\u0015\u0018\u0013 (5\u0003\u0015\u0018\u0013\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Desiree Gilberg v. Cal. Check Cashing Stores, LLC\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-01-29\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n DESIREE GILBERG, on behalf of No. 17-16263\\n herself, all others similarly situated,\\n Plaintiff-Appellant, D.C. No.\\n 2:15-cv-02309-\\n v. JAM-AC\\n\\n CALIFORNIA CHECK CASHING\\n STORES, LLC, a California OPINION\\n corporation; CHECKSMART\\n FINANCIAL, LLC, a Delaware limited\\n liability company,\\n Defendants-Appellees.\\n\\n Appeal from the United States District Court\\n for the Eastern District of California\\n John A. Mendez, District Judge, Presiding\\n\\n Argued and Submitted November 15, 2018\\n San Francisco, California\\n\\n Filed January 29, 2019\\n\\n Before: Raymond C. Fisher and Milan D. Smith, Jr.,\\n Circuit Judges, and Lawrence L. Piersol, District Judge. *\\n\\n Opinion by Judge Fisher\\n\\n *\\n The Honorable Lawrence L. Piersol, United States District Judge\\nfor the District of South Dakota, sitting by designation.\\n\\f2 GILBERG V. CAL. CHECK CASHING STORES\\n\\n SUMMARY **\\n\\n\\n Fair Credit Reporting Act\\n\\n The panel affirmed in part and vacated in part the district\\ncourt’s summary judgment in favor of defendants in an\\naction under the Fair Credit Reporting Act, and remanded\\nfor further proceedings.\\n\\n FCRA requires employers who obtain a consumer report\\non a job applicant to provide the applicant with a “clear and\\nconspicuous disclosure” that they may obtain such a report\\n(the “clear and conspicuous” requirement) “in a document\\nthat consists solely of the disclosure” (the “standalone\\ndocument” requirement) before procuring the report.\\n\\n The panel held that a prospective employer violates\\nFCRA’s “standalone document” requirement by including\\nextraneous information relating to various state disclosure\\nrequirements in that disclosure. The panel concluded that\\ndefendant’s form violated this requirement, as well as the\\n“standalone document” requirement of California’s\\nInvestigative Consumer Reporting Agencies Act. The panel\\nfurther held that defendant’s disclosure did not satisfy\\nFCRA’s and ICRAA’s “clear and conspicuous”\\nrequirements because, although the disclosure was\\nconspicuous, it was not clear.\\n\\n The panel addressed additional issues in a concurrently-\\nfiled memorandum disposition.\\n\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\f GILBERG V. CAL. CHECK CASHING STORES 3\\n\\n COUNSEL\\n\\nH. Scott W. Leviant (argued), Thomas Segal, and Shaun\\nSetareh, Setareh Law Group, Beverly Hills, California, for\\nPlaintiff-Appellant.\\n\\nTimothy W. Snider (argued) and Chrystal S. Chase, Stoel\\nRives LLP, Portland, Oregon; Bryan L. Hawkins, Stoel\\nRives LLP, Sacramento, California; for Defendants-\\nAppellees.\\n\\n\\n OPINION\\n\\nFISHER, Circuit Judge:\\n\\n The widespread use of credit reports and background\\nchecks led Congress to pass the Fair Credit Reporting Act\\n(FCRA) to protect consumers’ privacy rights. FCRA\\nrequires employers who obtain a consumer report on a job\\napplicant to provide the applicant with a “clear and\\nconspicuous disclosure” that they may obtain such a report\\n(the “clear and conspicuous requirement”) “in a document\\nthat consists solely of the disclosure” (the “standalone\\ndocument requirement”) before procuring the report.\\n15 U.S.C. § 1681b(b)(2)(A)(i). This appeal requires us to\\ndecide two questions: (1) whether a prospective employer\\nmay satisfy FCRA’s standalone document requirement by\\nproviding job applicants with a disclosure containing\\nextraneous information in the form of various state\\ndisclosure requirements, and (2) whether the specific\\ndisclosure provided by the employer in this case satisfied the\\nclear and conspicuous requirement.\\n\\f4 GILBERG V. CAL. CHECK CASHING STORES\\n\\n We held in Syed v. M-I, LLC, 853 F.3d 492 (9th Cir.\\n2017), that FCRA contains “clear statutory language that the\\ndisclosure document must consist ‘solely’ of the disclosure.”\\nId. at 496. Consistent with Syed, we now hold that a\\nprospective employer violates FCRA’s standalone document\\nrequirement by including extraneous information relating to\\nvarious state disclosure requirements in that disclosure. We\\nalso hold that the disclosure at issue here is conspicuous but\\nnot clear. Accordingly, we affirm in part, vacate in part and\\nremand. 1\\n\\nI. Background\\n\\n In the process of applying for employment with\\nCheckSmart Financial, LLC, Desiree Gilberg completed a\\nthree-page form containing an employment application, a\\nmath screening and an employment history verification.\\nTwo weeks later, Gilberg signed a separate form, entitled\\n“Disclosure Regarding Background Investigation,” that is\\nthe subject of this litigation. A copy of the disclosure is\\nappended to this opinion. The form appears to have been\\nprinted in Arial Narrow, size 8 font.\\n\\n Because the legal sufficiency of the FCRA disclosure\\nprovided to Gilberg is in question, we include the full text of\\nthe disclosure:\\n\\n\\n\\n\\n 1\\n We address Gilberg’s remaining contentions in a concurrently filed\\nmemorandum disposition.\\n\\f GILBERG V. CAL. CHECK CASHING STORES 5\\n\\n DISCLOSURE REGARDING\\n BACKGROUND INVESTIGATION\\n\\n DISCLOSURE AND\\n ACKNOWLEDGMENT\\n\\n [IMPORTANT – PLEASE READ\\n CAREFULLY BEFORE SIGNING\\n ACKNOWLEDGMENT]\\n\\nCheckSmart Financial, LLC may obtain\\ninformation about you from a consumer\\nreporting agency for employment purposes.\\nThus, you may be the subject of a ‘consumer\\nreport’ and/or an ‘investigative consumer\\nreport’ which may include information about\\nyour character, general reputation, personal\\ncharacteristics, and/or mode of living, and\\nwhich can involve personal interviews with\\nsources such as your neighbors, friends, or\\nassociates. These reports may include\\nemployment history and reference checks,\\ncriminal and civil litigation history\\ninformation, motor vehicle records (‘driving\\nrecords’), sex offender status, credit reports,\\neducation verification, professional\\nlicensure, drug testing, Social Security\\nVerification, and information concerning\\nworkers’ compensation claims (only once a\\nconditional offer of employment has been\\nmade). Credit history will only be requested\\nwhere such information is substantially\\nrelated to the duties and responsibilities of the\\nposition for which you are applying. You\\nhave the right, upon written request made\\n\\f6 GILBERG V. CAL. CHECK CASHING STORES\\n\\n within a reasonable time after receipt of this\\n notice, to request whether a consumer report\\n has been run about you, and the nature and\\n scope of any investigative consumer report,\\n and request a copy of your report. Please be\\n advised that the nature and scope of the most\\n common form of investigative consumer\\n report obtained with regard to applicants for\\n employment is an investigation into your\\n education and/or employment history\\n conducted by Employment Screening\\n Services, 2500 Southlake Park, Birmingham,\\n AL 35244, toll-free 866.859.0143,\\n www.es2.com or another outside\\n organization. The scope of this notice and\\n authorization is all-encompassing; however,\\n allowing CheckSmart Financial, LLC to\\n obtain from any outside organization all\\n manner of consumer reports and investigative\\n consumer reports now and, if you are hired,\\n throughout the course of your employment to\\n the extent permitted by law. As a result, you\\n should carefully consider whether to exercise\\n your right to request disclosure of the nature\\n and scope of any investigative consumer\\n report.\\n\\n New York and Maine applicants or\\n employees only: You have the right to inspect\\n and receive a copy of any investigative\\n consumer report requested by CheckSmart\\n Financial, LLC by contacting the consumer\\n reporting agency identified above directly.\\n You may also contact the Company to\\n request the name, address and telephone\\n\\f GILBERG V. CAL. CHECK CASHING STORES 7\\n\\nnumber of the nearest unit of the consumer\\nreporting agency designated to handle\\ninquiries, which the Company shall provide\\nwithin 5 days.\\n\\nNew York applicants or employees only:\\nUpon request, you will be informed whether\\nor not a consumer report was requested by\\nCheckSmart Financial, LLC, and if such\\nreport was requested, informed of the name\\nand address of the consumer reporting\\nagency that furnished the report.\\n\\nOregon applicants or employees only:\\nInformation describing your rights under\\nfederal and Oregon law regarding consumer\\nidentity theft protection, the storage and\\ndisposal of your credit information, and\\nremedies available should you suspect or find\\nthat the Company has not maintained secured\\nrecords is available to you upon request.\\n\\nWashington State applicants or employees\\nonly: You also have the right to request from\\nthe consumer reporting agency a written\\nsummary of your rights and remedies under\\nthe Washington Fair Credit Reporting Act.\\n\\nACKNOWLEDGMENT AND AUTHORIZATION\\n\\nI acknowledge receipt of the NOTICE\\nREGARDING BACKGROUND\\nINVESTIGATION and A SUMMARY OF\\nYOUR RIGHTS UNDER THE FAIR\\nCREDIT REPORTING ACT and certify that\\n\\f8 GILBERG V. CAL. CHECK CASHING STORES\\n\\n I have read and understand both of those\\n documents. I hereby authorize the obtaining\\n of “consumer reports” and/or “investigative\\n consumer reports” at any time after receipt of\\n this authorization and, if I am hired,\\n throughout my employment. To this end, I\\n hereby authorize, without reservation, any\\n law enforcement agency, administrator, state\\n or federal agency, institution, school or\\n university (public or private), information\\n service bureau, employer, or insurance\\n company to furnish any and all background\\n information requested by ESS, 2500\\n Southlake Park, Birmingham, AL 35244, toll\\n free 866.859.0143, www.es2.com, or another\\n outside organization acting on behalf of\\n CheckSmart Financial, LLC, I agree that a\\n facsimile (“fax”), electronic or photographic\\n copy of this Authorization shall be as valid as\\n the original.\\n\\n California applicants or employees only: By\\n signing below, you also acknowledge receipt\\n of the DISCLOSURE REGARDING\\n BACKGROUND INVESTIGATION\\n PURSUANT TO CALIFORNIA LAW.\\n Please check this box if you would like to\\n receive a copy of an investigative consumer\\n report or consumer credit report if one is\\n obtained by the Company at no charge\\n whenever you have a right to receive such a\\n copy under California law.\\n []\\n Minnesota and Oklahoma applicants or\\n employees only: Check this box if you would\\n\\f GILBERG V. CAL. CHECK CASHING STORES 9\\n\\n like to receive a free copy of a consumer\\n report if one is obtained by the Company.\\n []\\n New York applicants or employees only: By\\n signing below, you also acknowledge receipt\\n of Article 23-A of the New York Correction\\n Law.\\n\\n After receiving Gilberg’s signed disclosure form,\\nCheckSmart obtained a criminal background report, which\\nconfirmed that Gilberg did not have a criminal record.\\nCheckSmart did not obtain a credit report. CheckSmart\\nhired Gilberg, who worked for CheckSmart for five months\\nbefore voluntarily terminating her employment.\\n\\n Gilberg then brought this putative class action against\\nCheckSmart, alleging two claims relevant here: (1) failure to\\nmake a proper FCRA disclosure and (2) failure to make a\\nproper disclosure under California’s Investigative Consumer\\nReporting Agencies Act (ICRAA).\\n\\n FCRA prohibits an employer from obtaining an\\napplicant’s consumer report without first providing the\\napplicant with a standalone, clear and conspicuous\\ndisclosure of its intention to do so and without obtaining the\\napplicant’s consent:\\n\\n Except as provided in subparagraph (B), a\\n person may not procure a consumer report, or\\n cause a consumer report to be procured, for\\n employment purposes with respect to any\\n consumer, unless –\\n\\n (i) a clear and conspicuous disclosure has\\n been made in writing to the consumer at any\\n time before the report is procured or caused\\n\\f10 GILBERG V. CAL. CHECK CASHING STORES\\n\\n to be procured, in a document that consists\\n solely of the disclosure, that a consumer\\n report may be obtained for employment\\n purposes; and\\n\\n (ii) the consumer has authorized in writing\\n (which authorization may be made on the\\n document referred to in clause (i)) the\\n procurement of the report by that person.\\n\\n15 U.S.C. § 1681b(b)(2)(A) (emphasis added).\\n\\n California imposes its own FCRA-like disclosure\\nrequirements. See Cal. Civ. Code §§ 1785.20(5)(a),\\n1786.16(a)(2)(B). Under ICRAA:\\n\\n (2) If, at any time, an investigative consumer\\n report is sought for employment purposes\\n other than suspicion of wrongdoing or\\n misconduct by the subject of the\\n investigation, the person seeking the\\n investigative consumer report may procure\\n the report, or cause the report to be made,\\n only if all of the following apply:\\n\\n ...\\n\\n (B) The person procuring or causing the\\n report to be made provides a clear and\\n conspicuous disclosure in writing to the\\n consumer at any time before the report is\\n procured or caused to be made in a\\n document that consists solely of the\\n disclosure, that:\\n\\f GILBERG V. CAL. CHECK CASHING STORES 11\\n\\n (i) An investigative consumer report\\n may be obtained.\\n\\n ...\\n\\n (C) The consumer has authorized in\\n writing the procurement of the report.\\n\\nId. § 1786.16(a)(2) (emphasis added). As relevant here, the\\nICRAA and FCRA provisions are identical.\\n\\n CheckSmart moved for summary judgment on both\\nclaims. The district court entered summary judgment\\nagainst Gilberg, concluding that CheckSmart’s disclosure\\nform complied with FCRA and ICRAA. Gilberg timely\\nappealed.\\n\\nII. Jurisdiction and Standard of Review\\n\\n We have jurisdiction under 28 U.S.C. § 1291. We\\nreview de novo an order granting summary judgment. See\\nTravelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d\\n1132, 1137 (9th Cir. 2009).\\n\\nIII. FCRA and ICRAA Standalone Document\\n Requirements\\n\\n A. The Relevant Disclosure Form\\n\\n Gilberg contends the relevant document for our analysis\\nincludes every form she filled out in the employment process\\n– a total of four pages. We disagree. Gilberg does not offer\\nany judicial authority, legislative history or dictionary\\ndefinition to support her argument that the word\\n“document,” as used in FCRA, encompasses the universe of\\nemployment application materials furnished by an employer\\n\\f12 GILBERG V. CAL. CHECK CASHING STORES\\n\\nto a prospective employee. She relies instead on California\\ncontract law, under which “[s]everal contracts relating to the\\nsame matters, between the same parties, and made as parts\\nof substantially one transaction, are to be taken together.”\\nCal. Civ. Code § 1642. Gilberg, however provides no\\npersuasive reason to extend this contract law principle to\\nFCRA’s definition of a document, and we decline to do so.\\nMoreover, under Gilberg’s proposed interpretation, it is\\ndifficult to see how an employer could ever provide an\\napplicant written application materials without violating\\nFCRA’s standalone document requirement.\\n\\n Gilberg’s three-page employment packet was distinct\\nfrom the one-page disclosure document. The relevant form\\nfor our analysis, therefore, is the disclosure form alone, not\\nthe entire four pages.\\n\\n B. CheckSmart’s disclosure form violates FCRA’s\\n standalone document requirement.\\n\\n Gilberg contends CheckSmart’s disclosure form violates\\nFCRA’s standalone document requirement. We agree.\\n\\n We analyzed FCRA’s standalone document requirement\\nin Syed v. M-I, LLC, 853 F.3d 492 (9th Cir. 2017). Syed held\\nthat “a prospective employer violates Section\\n1681b(b)(2)(A) when it procures a job applicant’s consumer\\nreport after including a liability waiver in the same document\\nas the statutorily mandated disclosure.” Id. at 496. We\\nconcluded the statute meant what it said: the required\\ndisclosure must be in a document that “consist[s] ‘solely’ of\\nthe disclosure.” Id. We based this holding on the statute’s\\nplain language, noting “[w]here congressional intent ‘has\\nbeen expressed in reasonably plain terms, that language must\\nordinarily be regarded as conclusive.’” Id. at 500 (quoting\\nGriffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570\\n\\f GILBERG V. CAL. CHECK CASHING STORES 13\\n\\n(1982)). “That other FCRA provisions mandating disclosure\\nomit the term ‘solely’ is further evidence that Congress\\nintended that term to carry meaning in 15 U.S.C.\\n§ 1681b(b)(2)(A)(i).” Id. at 501.\\n\\n CheckSmart contends Syed is not applicable here,\\nbecause the surplusage in Syed was a liability waiver, which\\ndid “not comport with the FCRA’s basic purpose” because\\nit pulled “the applicant’s attention away from his privacy\\nrights protected by the FCRA by calling his attention to the\\nrights he must forego if he signs the document.” Id. at 502.\\nCheckSmart argues its disclosure is distinguishable because\\nall of the extraneous information consists of other, state-\\nmandated disclosure information, which furthers rather than\\nundermines FCRA’s purpose.\\n\\n We disagree. Syed’s holding and statutory analysis were\\nnot limited to liability waivers; Syed considered the\\nstandalone requirement with regard to any surplusage. See\\nid. at 501. Syed grounded its analysis of the liability waiver\\nin its statutory analysis of the word “solely,” noting that\\nFCRA should not be read to have implied exceptions,\\nespecially when the exception – in that case, a liability\\nwaiver – was contrary to FCRA’s purpose. See id. at 501–\\n03. Syed also cautioned “against finding additional, implied\\nexceptions” simply because Congress had created one\\nexpress exception. Id. at 501. 2 Consistent with Syed, we\\ndecline CheckSmart’s invitation to create an implied\\nexception here.\\n\\n\\n 2\\n FCRA’s one express exception to the standalone document\\nrequirement, specified in 15 U.S.C. § 1681b(b)(2)(A)(ii), allows the\\napplicant to “authorize in writing” the procurement of a consumer report\\non the same document as the disclosure.\\n\\f14 GILBERG V. CAL. CHECK CASHING STORES\\n\\n Although CheckSmart contends its disclosure form is\\nconsistent with the congressional purpose of FCRA because\\nit helps applicants understand their state and federal rights,\\npurpose does not override plain meaning. As Syed\\nexplained, congressional intent “has been expressed in\\nreasonably plain terms” and “that language must ordinarily\\nbe regarded as conclusive.” Id. at 500 (quoting Griffin,\\n458 U.S. at 570). The ordinary meaning of “solely” is\\n“[a]lone; singly” or “[e]ntirely; exclusively.” The American\\nHeritage Dictionary of the English Language 1666 (5th ed.\\n2011). Because CheckSmart’s disclosure form does not\\nconsist solely of the FCRA disclosure, it does not satisfy\\nFCRA’s standalone document requirement.\\n\\n CheckSmart, moreover, fails to explain how the surplus\\nlanguage in its disclosure form comports with FCRA’s\\npurpose. Its disclosure refers not only to rights under FCRA\\nand under ICRAA applicable to Gilberg, but also to rights\\nunder state laws inapplicable to Gilberg and to extraneous\\ndocuments that are not part of the FCRA-mandated\\ndisclosure – e.g., a “Notice Regarding Background\\nInvestigation” and a “Summary of Your Rights Under the\\nFair Credit Reporting Act.” Because the presence of this\\nextraneous information is as likely to confuse as it is to\\ninform, it does not further FCRA’s purpose.\\n\\n CheckSmart urges us to follow the district court’s\\ndecision in Noori v. Vivint, Inc., No. CV 16-5491 PA\\n(FFMX), 2016 WL 9083368 (C.D. Cal. Sept. 6, 2016), aff’d\\non other grounds, 726 F. App’x 624 (9th Cir. 2018), which\\nreasoned that the inclusion of information “closely related”\\nto FCRA’s disclosure requirements does not violate the\\nstandalone document requirement. Id. at *5. Our\\nsubsequent decision in Syed, however, forecloses that\\napproach. Noori, moreover, did not explain how to\\n\\f GILBERG V. CAL. CHECK CASHING STORES 15\\n\\ndetermine what information would be “closely related” to\\nFCRA’s disclosure requirements. Indeed, even “related”\\ninformation may distract or confuse the reader.\\n\\n In sum, Syed holds that the standalone requirement\\nforecloses implicit exceptions. The statute’s one express\\nexception does not apply here, and CheckSmart’s disclosure\\ncontains extraneous and irrelevant information beyond what\\nFCRA itself requires. The disclosure therefore violates\\nFCRA’s standalone document requirement. Even if\\ncongressional purpose were relevant, much of the surplusage\\nin CheckSmart’s disclosure form does not effectuate the\\npurposes of FCRA. The district court therefore erred in\\nconcluding that CheckSmart’s disclosure form satisfies\\nFCRA’s standalone document requirement.\\n\\n C. CheckSmart’s disclosure form also violates ICRAA’s\\n standalone document requirement.\\n\\n As the parties appear to agree, the standalone document\\nrequirements under FCRA and ICRAA are identical. Thus,\\nbecause we conclude CheckSmart’s disclosure violates\\nFCRA, we conclude it violates ICRAA’s standalone\\ndocument requirement as well.\\n\\nIV. CheckSmart’s disclosure form was not “clear and\\n conspicuous.”\\n\\n FCRA and ICRAA require a disclosure form to be “clear\\nand conspicuous.” 15 U.S.C. § 1681b(b)(2)(A)(i); Cal. Civ.\\nCode § 1786.16(a)(2)(B). Neither statute, however, defines\\nthe term “clear and conspicuous.”\\n\\n Like other circuits, we “draw upon the wealth of\\n[Uniform Commercial Code (UCC)] and [Truth in Lending\\nAct (TILA)] case law in determining the meaning of ‘clear\\n\\f16 GILBERG V. CAL. CHECK CASHING STORES\\n\\nand conspicuous’ under the FCRA.” Cole v. U.S. Capital,\\n389 F.3d 719, 730 (7th Cir. 2004); see also Stevenson v.\\nTRW Inc., 987 F.2d 288, 295–96 (5th Cir. 1993) (interpreting\\n“clear and conspicuous” language used in 15 U.S.C.\\n§ 1681i(d) with reference to TILA and UCC cases). We\\nadopt our “clear and conspicuous” analysis from Rubio v.\\nCapital One Bank, 613 F.3d 1195 (9th Cir. 2010), a TILA\\ndisclosure case. In Rubio, we explained that clear means\\n“reasonably understandable.” Id. at 1200 (citation omitted);\\naccord Applebaum v. Nissan Motor Acceptance Corp.,\\n226 F.3d 214, 220 (3d Cir. 2000) (holding in the TILA\\ncontext that “clear” means the “language used in a disclosure\\nmust be cast in [a] reasonably understandable form.”\\n(internal quotation marks omitted)). Conspicuous means\\n“readily noticeable to the consumer.” Rubio, 613 F.3d at\\n1200 (citation omitted). Because the parties do not argue\\nthat ICRAA’s clear and conspicuous requirement differs\\nfrom FCRA’s, we apply those definitions to Gilberg’s\\nICRAA claim as well.\\n\\n Although the “clear and conspicuous” requirement\\nimposes a single statutory obligation, we may analyze each\\nprong separately, see, e.g., In re Bassett, 285 F.3d 882, 885\\n(9th Cir. 2002) (interpreting 11 U.S.C. § 524), and we do so\\nhere. In the TILA context, we have said that clarity and\\nconspicuousness are questions of law. See Rubio, 613 F.3d\\nat 1200. Because neither party suggests we should treat\\nFCRA differently, we assume for the purposes of our\\nanalysis, without deciding, that clarity and conspicuousness\\nunder FCRA present questions of law rather than fact.\\n\\n A. CheckSmart’s disclosure form was not clear.\\n\\n CheckSmart’s disclosure form is not reasonably\\nunderstandable for two distinct reasons. First, the disclosure\\n\\f GILBERG V. CAL. CHECK CASHING STORES 17\\n\\nform contains language that a reasonable person would not\\nunderstand. It says:\\n\\n The scope of this notice and authorization is\\n all-encompassing; however, allowing\\n CheckSmart Financial, LLC to obtain from\\n any outside organization all manner of\\n consumer reports and investigative consumer\\n reports now and, if you are hired, throughout\\n the course of your employment to the extent\\n permitted by law.\\n\\nThe beginning of this sentence does not explain how the\\nauthorization is all-encompassing and how that would affect\\nan applicant’s rights. The second half of the sentence,\\nfollowing the semicolon, lacks a subject and is incomplete.\\nIt suggests that there may be some limits on the all-\\nencompassing nature of the authorization, but it does not\\nidentify what those limits might be.\\n\\n Second, the disclosure would confuse a reasonable\\nreader because it combines federal and state disclosures.\\nThe disclosure, for example, states: “New York and Maine\\napplicants or employees only: You have the right to inspect\\nand receive a copy of any investigative consumer report\\nrequested by CheckSmart Financial, LLC by contacting the\\nconsumer reporting agency identified above directly.” A\\nreasonable reader might think that only New York and\\nMaine applicants could contact the consumer reporting\\nagency to get a copy of the report. Such an understanding\\nwould be contrary to both FCRA and ICRAA. See 15 U.S.C.\\n§ 1681m(3)–(4); Cal. Civ. Code § 1786.22.\\n\\n We hold, therefore, that the district court erred by\\ndeeming CheckSmart’s disclosure form clear.\\n\\f18 GILBERG V. CAL. CHECK CASHING STORES\\n\\n B. CheckSmart’s disclosure form was conspicuous.\\n\\n The district court properly concluded, however, that\\nCheckSmart’s disclosure form is conspicuous. As noted,\\nconspicuous means “readily noticeable to the consumer.”\\nRubio, 613 F.3d at 1200. CheckSmart capitalized, bolded\\nand underlined the headings for each section of the\\ndisclosure and labeled the form so an applicant could see\\nwhat she was signing. Although the font is small and\\ncramped (we think inadvisably so), it is legible. All relevant\\ninformation appears on the front of the page and the headings\\nhelp applicants understand the purpose of the form. The\\ndisclosure, therefore, is conspicuous.\\n\\n Nevertheless, because CheckSmart’s disclosure form\\nwas not both clear and conspicuous, the district erred in\\ngranting CheckSmart’s motion for summary judgment with\\nregard to the FCRA and ICRAA “clear and conspicuous”\\nrequirements.\\n\\nV. Conclusion\\n\\n We hold that the district court erred by concluding that\\nthe standalone document requirements of FCRA and ICRAA\\nwere satisfied here. We further hold that CheckSmart’s\\ndisclosure satisfies the FCRA and ICRAA requirements for\\nconspicuousness but not for clarity. For these reasons, and\\nthe reasons stated in our contemporaneously filed\\nmemorandum disposition, we affirm in part and vacate in\\npart the judgment of the district court, and we remand for\\nfurther proceedings consistent with these dispositions. Each\\nparty shall bear its own costs of appeal.\\n\\n AFFIRMED IN PART; VACATED IN PART;\\nREMANDED.\\n\\fAppendix A\\n\\f Case 2:15-cv-02309-JAM-AC Document 49-1 Filed 05/09/17 Page 40 of 49\\n\\n\\n\\n\\n(5\\u0003\\u0015\\u0018\\u0013 (5\\u0003\\u0015\\u0018\\u0013 (5\\u0003\\u0015\\u0018\\u0013\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":369,"cells":{"id":{"kind":"number","value":4585847,"string":"4,585,847"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Michael Frost v. Bnsf Railway Company"},"decision_date":{"kind":"string","value":"2019-01-30"},"docket_number":{"kind":"string","value":"17-35513"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: Ferdinand F. Fernandez, N. Randy Smith, and Morgan Christen, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"CHRISTEN, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"FOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nMICHAEL A. FROST, No. 17-35513\\n Plaintiff-Appellant,\\n D.C. No.\\n v. 9:15-cv-00124-DWM\\n\\nBNSF RAILWAY COMPANY,\\n Defendant-Appellee. OPINION\\n\\n\\n Appeal from the United States District Court\\n for the District of Montana\\n Donald W. Molloy, Senior District Judge, Presiding\\n\\n Argued and Submitted October 9, 2018\\n Seattle, Washington\\n\\n Filed January 30, 2019\\n\\n Before: Ferdinand F. Fernandez, N. Randy Smith,\\n and Morgan Christen, Circuit Judges.\\n\\n Opinion by Judge Christen\\n\\f2 FROST V. BNSF\\n\\n SUMMARY*\\n\\n\\n Labor Law\\n\\n The panel reversed the district court’s judgment, after a\\njury trial, in favor of the defendant in an action under the\\nFederal Railroad Safety Act and remanded for a new trial.\\n\\n Michael Frost alleged that BNSF Railway Co. violated\\nthe FRSA when it disciplined and ultimately terminated him\\nafter he committed a pair of safety rule violations and filed an\\ninjury report. At trial, the district court instructed the jury\\nthat BNSF could not be liable if it terminated Frost due to an\\n“honest belief” that he violated the company’s safety rules.\\n\\n The panel held that the “honest belief” jury instruction\\nwas inconsistent with the FRSA’s clear statutory mandate\\nand prior caselaw. To establish a claim of unlawful\\ndiscrimination under the FRSA, a plaintiff must prove by a\\npreponderance of the evidence that his protected conduct was\\na contributing factor in an adverse employment action. The\\npanel held that there is no separate requirement that the\\nplaintiff prove that his employer acted with discriminatory\\nintent. Rather, by proving that an employee’s protected\\nactivity contributed in some way to the employer’s adverse\\nconduct, the FRSA plaintiff has proven that the employer\\nacted with some level of retaliatory intent. The panel held\\nthat the “honest belief” jury instruction therefore misstated\\nthe applicable law, and BNSF did not rebut the presumption\\n\\n\\n *\\n This summary constitutes no part of the opinion of the court. It has\\nbeen prepared by court staff for the convenience of the reader.\\n\\f FROST V. BNSF 3\\n\\nof prejudice. Accordingly, the panel reversed the district\\ncourt’s determination and remanded for a new trial.\\n\\n\\n COUNSEL\\n\\nLucas J. Kaster (argued) and James H. Kaster, Nichols Kaster\\nLLP, Minneapolis, Minnesota, for Plaintiff-Appellant.\\n\\nBryan P. Neal (argued), Thompson & Knight LLP, Dallas,\\nTexas; Keith M. Gorman, Hall & Evans LLC, Denver,\\nColorado; Paul S. Balanon, General Attorney, BNSF Railway\\nCompany, Fort Worth, Texas; for Defendant-Appellee.\\n\\n\\n OPINION\\n\\nCHRISTEN, Circuit Judge:\\n\\n Michael Frost sued the BNSF Railway Company, alleging\\nthat it violated the Federal Railroad Safety Act (FRSA) when\\nit disciplined and ultimately terminated him after he\\ncommitted a pair of safety rule violations and filed an injury\\nreport. At trial, the district court instructed the jury that\\nBNSF could not be liable if it terminated Frost due to an\\n“honest belief” that he violated the company’s safety rules.\\nThe jury returned a verdict for BNSF. We review the\\npropriety of the “honest belief” jury instruction. Because it\\nis inconsistent with the FRSA’s clear statutory mandate and\\nour prior caselaw, we reverse and remand for a new trial.\\n\\f4 FROST V. BNSF\\n\\n I.\\n\\n BNSF is a large railway company that operates freight\\ntrains throughout the United States. Due to the many\\npotential hazards associated with powerful locomotives\\noperating near train and track workers, BNSF imposes a\\nnumber of safety rules on its employees to minimize risks and\\nprevent injuries. Among other things, those rules prohibit\\nemployees from approaching—or “fouling”—a track unless\\nthey have the proper authority and a work-related reason to be\\nnear the tracks.\\n\\n BNSF hired Frost as a track laborer in June 2011. Within\\nthe first two years of his employment, Frost was disciplined\\ntwice for fouling the track. The first violation occurred on\\nApril 18, 2012. Frost was working with a crew that was\\nrepairing a section of track near Brimstone, Montana. The\\ncrew was removing and replacing a side track that ran\\nadjacent to a main line. The crew members secured track\\nauthority—i.e., permission to be near the tracks because no\\ntrains would be running on the tracks—for both tracks at the\\nstart of their shift in order to move their equipment into\\nposition on the side track. The crew’s foreman, George\\nSchultz, released the crew’s track authority for the main line\\nonce the equipment was in place on the side track, but he\\napparently failed to relay that information to Frost or the rest\\nof the work crew.\\n\\n During the course of the shift, Frost believed that the\\nrepair equipment was not being anchored properly so he\\nmoved toward the main line track to get a better view. At that\\npoint, a train traveling approximately 60 miles per hour\\npassed by on the main line, narrowly missing Frost. The\\ncrew stopped working and Frost was taken to the hospital for\\n\\f FROST V. BNSF 5\\n\\nexamination. On April 20, 2012, BNSF issued a notice of\\ninvestigation to Frost and Schultz regarding the near-miss\\nincident. Frost returned to work a few days later and filed an\\ninjury report describing his injury as “PTSD following a\\ntraumatic incident.”\\n\\n BNSF held a disciplinary hearing in July 2012. Frost\\nargued at the hearing that he was being singled out because\\nseveral of his fellow laborers (who had not filed injury\\nreports) acknowledged that they were also near the track but\\nthey were not disciplined. Frost also claimed that inspecting\\nthe equipment’s anchoring pattern was a legitimate job-\\nrelated reason for approaching the main line. The hearing\\nofficer, Robert Rindy, rejected both arguments. Rindy\\nreviewed video from the train which showed no other\\nlaborers near the main line track. He also concluded that\\nFrost could have checked the anchoring pattern from other\\nlocations without approaching the main line track. Because\\nRindy determined that Frost fouled the track and committed\\na Level S (Serious) safety violation, Frost received a 30-day\\nrecord suspension and was placed on a 36-month review\\nperiod for that incident.1 On October 9, 2012, Frost\\nresponded by filing an FRSA retaliation complaint with\\nOSHA.\\n\\n Frost’s second track violation occurred on November 8,\\n2012, when he was working on a crew in Wyoming as a\\ngrapple truck driver. Frost arrived at the work site and parked\\nhis truck by a railroad crossing with the back end of the truck\\noverhanging the track. Frost then entered a trailer where\\nseveral other BNSF employees were located, and apparently\\nsaid something like “I guess I better get the authority since\\n\\n 1\\n Schultz, the crew foreman, was also disciplined for this incident.\\n\\f6 FROST V. BNSF\\n\\nI’m already fouling the track.” Because BNSF employees are\\nrequired to know the precise details of their track authority\\nbefore fouling a track, the other employees became concerned\\nand a supervisor was called. The supervisor spoke with Frost\\nand determined that he did not appear to have secured track\\nauthority before parking his truck. The supervisor removed\\nFrost from service and reported the incident to Keith\\nSamples, a division manager.\\n\\n BNSF issued a notice of investigation and conducted a\\nhearing regarding the second incident in January of 2013.\\nFollowing the hearing, Samples found that Frost did not know\\nthe details of his track authority and that he had violated\\nBNSF safety rules. Samples then concluded that Frost should\\nbe discharged due to the seriousness of the violation and the\\nfact that it occurred so soon after the first disciplinary\\nincident. It is undisputed that Frost would not have been\\ndischarged if the first incident had not occurred.\\n\\n Frost requested reinstatement. After an internal review,\\nBNSF decided to reinstate Frost, due to a concern that BNSF\\nwould not be able to justify the discipline imposed for the\\nApril 2012 incident if Frost challenged his dismissal before\\nan arbitrator. Frost was reinstated, with back pay, and BNSF\\nremoved the April 2012 disciplinary incident from his record.\\n\\n Nevertheless, Frost filed suit in September of 2015\\nalleging retaliation under the FRSA for Frost’s engagement\\nin protected activities—i.e., for reporting the PTSD injury\\nfollowing the first incident and for filing an OSHA complaint\\nalleging disciplinary retaliation shortly thereafter. Frost’s\\ncomplaint alleged that these protected activities were\\ncontributing factors to BNSF’s decision to terminate him, and\\n\\f FROST V. BNSF 7\\n\\nhe sought an award of emotional distress damages, punitive\\ndamages, and attorney’s fees.\\n\\n The matter was tried to a jury over four days. At trial,\\nRindy testified that he disciplined Frost because such\\ndiscipline was required by BNSF’s employee performance\\naccountability policy, and not because Frost had filed an\\ninjury report or engaged in any other protected activities.\\nAnd Samples testified that when he decided in 2013 that Frost\\nshould be discharged, he was not aware that Frost had filed an\\nOSHA complaint concerning the first incident. At the close\\nof the evidence, the trial court instructed the jury, over Frost’s\\nobjection, that:\\n\\n BNSF cannot be held liable under the Federal\\n Railroad Safety Act if you conclude that\\n defendant terminated plaintiff’s employment\\n based on its honestly held belief that plaintiff\\n engaged in the conduct for which he was\\n disciplined.\\n\\nThe jury returned a verdict in favor of BNSF.\\n\\n Frost moved for a new trial, arguing that the honest belief\\njury instruction was erroneous and that it substantially\\nprejudiced him. He also argued the he deserved a new trial\\nbecause BNSF improperly withheld evidence regarding a\\npotential retaliatory motive for terminating him—a\\n“scorecard” policy that rated each manager, in part, on the\\nnumber of injuries that occurred on his or her watch. The\\ntrial court acknowledged that BNSF appeared to “have hidden\\nthe ball” by not producing the scorecard policy in discovery,\\nbut it found no prejudice. The district court was also\\n\\f8 FROST V. BNSF\\n\\nunpersuaded by Frost’s challenge to the honest belief\\ninstruction. Frost appealed.2\\n\\n II.\\n\\n We review de novo whether a jury instruction properly\\nstates the elements that must be proved at trial. Chuman v.\\nWright, 76 F.3d 292, 294 (9th Cir. 1996). An instruction is\\nerroneous when, viewing the instructions as a whole, the\\n“substance of the applicable law was [not] fairly and correctly\\ncovered.” Miller v. Republic Nat’l Life Ins. Co., 789 F.2d\\n1336, 1339 (9th Cir. 1986) (alteration in original and citation\\nomitted). If there is an error, we presume that the error was\\nprejudicial and the non-moving party bears the burden of\\nestablishing that “it is more probable than not” that a properly\\ninstructed jury “would have reached the same verdict.”\\nGaldamez v. Potter, 415 F.3d 1015, 1025 (9th Cir. 2005)\\n(quoting Obrey v. Johnson, 400 F.3d 691, 701 (9th Cir.\\n2005)) (internal quotation marks omitted).\\n\\n III.\\n\\n We first examine the appropriate standards governing a\\nclaim of unlawful discrimination under the FRSA. As we\\nrecently explained in Rookaird v. BNSF Railway Co.,\\n908 F.3d 451 (9th Cir. 2018), the FRSA expressly invokes the\\n\\n\\n\\n\\n 2\\n Because we reverse the district court’s denial of Frost’s request for\\na new trial on the basis of the erroneous honest belief jury instruction, we\\ndo not address Frost’s claim that he is also entitled to a new trial because\\nBNSF withheld relevant and material documents in discovery.\\n\\f FROST V. BNSF 9\\n\\nAIR-213 framework set forth in 49 U.S.C. § 42121(b) for\\nclaims of unlawful discrimination. Id. at 459.4\\n\\n To establish a claim of unlawful discrimination under\\nthe FRSA, the plaintiff must prove by a preponderance of\\nthe evidence that his or her protected conduct “was a\\ncontributing factor in the unfavorable personnel action\\nalleged in the complaint.” Id. at 460 (citing 49 U.S.C.\\n§ 42121(b)(2)(B)(iii)). A contributing factor is “any factor,\\nwhich alone or in connection with other factors, tends to\\naffect in any way the outcome of the decision.” Rookaird,\\n908 F.3d at 461 (internal quotation marks omitted). If the\\nplaintiff succeeds, the employer can attempt to rebut the\\nallegations and defeat the claim by demonstrating “by clear\\nand convincing evidence that the employer would have taken\\nthe same unfavorable personnel action in the absence of [the\\nprotected activity].” 49 U.S.C. § 42121(b)(2)(B)(iv).\\n\\n Importantly, the only burden the statute places on FRSA\\nplaintiffs is to ultimately prove, by a preponderance of the\\nevidence, that their protected conduct was a contributing\\nfactor to the adverse employment action—i.e., that it\\n\\n\\n 3\\n “AIR-21” refers to the Wendell H. Ford Aviation Investment and\\nReform Act for the 21st Century, Pub. L. No. 106-181, 114 Stat. 61\\n(2000), which includes protections for whistleblowers and prohibits\\ndiscrimination against an air carrier employee who reports information\\nrelated to air carrier safety. Congress expressly adopted the same standard\\nfor the FRSA. 49 U.S.C. § 20109(d)(2).\\n 4\\n We are aware that under this framework there are two stages, a\\nprima facie stage and a substantive stage. We are here concerned\\nprimarily with the substantive stage, as this appeal causes us to consider\\nonly whether the honest belief instruction altered the substance of what\\nneeded to be proven at trial.\\n\\f10 FROST V. BNSF\\n\\n“tend[ed] to affect” the decision in some way. Id.\\n§ 42121(b)(2)(B); Rookaird, 908 F.3d at 461.\\n\\n BNSF argues that the FRSA is a “discrimination statute”\\nand that plaintiffs must therefore affirmatively prove that\\ntheir employers acted with discriminatory intent or animus in\\norder to bring claims for unlawful retaliation. We recognize\\nthat the FRSA, by its terms, describes and forbids intentional\\nretaliation, 49 U.S.C. § 20109(a), meaning that employers\\nmust act with impermissible intent or animus to violate the\\nstatute. What BNSF misses is that the only proof of\\ndiscriminatory intent that a plaintiff is required to show is that\\nhis or her protected activity was a “contributing factor” in the\\nresulting adverse employment action. Showing that an\\nemployer acted in retaliation for protected activity is the\\nrequired showing of intentional discrimination; there is no\\nrequirement that FRSA plaintiffs separately prove\\ndiscriminatory intent. 49 U.S.C. § 42121(b)(2)(B). Indeed,\\nin Tamosaitis v. URS Inc., 781 F.3d 468 (9th Cir. 2015), we\\nreviewed claims under the Energy Reorganization Act’s\\nwhistleblower retaliation protections that employ the same\\nstatutory framework as the FRSA. Id. at 480. We explained:\\n“Under this framework, the presence of an employer’s\\nsubjective retaliatory animus is irrelevant. All a plaintiff\\nmust show is that his ‘protected activity was a contributing\\nfactor in the adverse [employment] action.’” Id. at 482\\n(alterations in original) (quoting 29 C.F.R. § 24.104(f)(1)).\\nCoppinger-Martin v. Solis, 627 F.3d 745 (9th Cir. 2010) also\\ninvolved a retaliation claim arising in the context of a statute\\nwith the same “contributing factor” framework. There, we\\nexplained that to meet her burden at the prima facie stage a\\nplaintiff need not “conclusively demonstrate the employer’s\\nretaliatory motive.” Id. at 750 (emphasis added). Rather, the\\nemployer’s retaliatory motive was established by proving that\\n\\f FROST V. BNSF 11\\n\\nthe protected conduct was a contributing factor to the\\nemployer’s adverse action.\\n\\n More recently, in Rookaird, we quoted the Eighth\\nCircuit’s decision in Kuduk v. BNSF Railway Co., 768 F.3d\\n786 (8th Cir. 2014), and said that “‘the contributing factor\\nthat an employee must prove is intentional retaliation\\nprompted by the employee engaging in protected activity.’”\\nRookaird, 908 F.3d at 461–62 (quoting Kuduk, 768 F.3d at\\n791) (alteration omitted). BNSF cites this language from the\\nKuduk decision to argue that the FRSA requires proof of\\ndiscriminatory animus, separate from and beyond the\\nstatutorily required evidence that the plaintiff’s protected\\nconduct was a contributing factor in the adverse employment\\naction. But as Tamosaitis and Coppinger-Martin have\\nshown, we have already rejected that premise as inconsistent\\nwith the FRSA’s articulation of each party’s required\\nevidentiary burden. In fact, in Kuduk, the Eighth Circuit\\nrelied on our Coppinger-Martin decision and acknowledged\\nthat plaintiff need not provide “conclusive[]” proof of the\\nemployer’s animus to establish the plaintiff’s prima facie\\ncase. See Kuduk, 768 F.3d at 791. Rookaird’s citation to\\nKuduk does not imply, much less impose, an obligation to\\nprove retaliatory intent that is not included within the FRSA’s\\nclear and explicit statutory scheme. Instead, Rookaird simply\\nconfirms that although intent or animus is part of an FRSA\\nplaintiff’s case, showing that plaintiff’s protected conduct\\nwas a contributing factor is the required showing of intent or\\n“intentional retaliation[.]” Id. That is, by proving that an\\nemployee’s protected activity contributed in some way to the\\nemployer’s adverse conduct, the FRSA plaintiff has proven\\nthat the employer acted with some level of retaliatory intent.\\n\\f12 FROST V. BNSF\\n\\n Consistent with the language of 49 U.S.C.\\n§ 42121(b)(2)(B) and our prior decisions in Tamosaitis,\\nCoppinger-Martin, and Rookaird, we hold that although the\\nFRSA’s prohibition on “discriminat[ing] against an\\nemployee” ultimately requires a showing of the employer’s\\ndiscriminatory or retaliatory intent, FRSA plaintiffs satisfy\\nthat burden by proving that their protected activity was a\\ncontributing factor to the adverse employment decision.5\\nThere is no requirement, at either the prima facie stage or the\\nsubstantive stage, that a plaintiff make any additional\\nshowing of discriminatory intent.\\n\\n IV.\\n\\n A.\\n\\n Frost argues that the district court’s honest belief jury\\ninstruction misstated the applicable law. We agree.\\n\\n The district court instructed the jury that:\\n\\n BNSF cannot be held liable under the Federal\\n Railroad Safety Act if you conclude that\\n defendant terminated plaintiff’s employment\\n based on its honestly held belief that plaintiff\\n engaged in the conduct for which he was\\n disciplined.\\n\\n\\n 5\\n This holding is consistent with recent authority from the Third\\nCircuit, see Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152,\\n158 (3d Cir. 2013), but we recognize that it may conflict with authority\\nfrom the Seventh and Eighth Circuits. However, we are bound by our\\nprior caselaw as well as the explicit statutory language of 49 U.S.C.\\n§§ 20109(d) and 42121(b)(2)(B).\\n\\f FROST V. BNSF 13\\n\\n That instruction is not consistent with the FRSA’s\\nstatutory scheme. Frost needed to prove only that his\\nprotected conduct (filing an injury report and an OSHA\\ncomplaint) was a contributing factor to his ultimate\\ntermination. To rebut Frost’s case, BNSF had to prove that\\nthe same discipline would have been imposed with or without\\nthe injury report or the OSHA complaint. See 49 U.S.C.\\n§ 42121(b)(2)(B); Rookaird, 908 F.3d at 460. This\\nnecessarily means it was possible for Frost to show retaliation\\neven if BNSF had an honestly-held, justified belief that he\\nfouled the track. Frost was not required to show that his\\ninjury report was the only reason or that no other factors\\ninfluenced BNSF’s decision to terminate him. Nor does the\\ninstruction’s use of “based on” foreclose the possibility that\\nan impermissible factor or consideration contributed to the\\ndecision to discipline Frost. As Rookaird explained,\\n“contributing factors” may be quite modest—they include\\n“any factor” which “tends to affect in any way the outcome\\nof the decision.” Id. at 461 (internal quotation marks\\nomitted). Under the AIR-21 standard, Frost would be entitled\\nto relief even if his filing of an injury report played only a\\nvery small role in BNSF’s decision-making process.\\n\\n Instructing the jurors that they could find for BNSF by\\nlooking only at whether BNSF honestly believed that Frost\\nbroke a rule risked denying Frost a remedy to which he may\\nbe entitled under the statute, particularly because the evidence\\nhere appears to show relatively clearly that Frost fouled the\\ntrack. The instruction may have encouraged the jury to skirt\\nthe actual issue and improperly focus on whether discipline\\nwas justified for Frost’s safety violation instead of whether\\nhis protected conduct “tend[ed] to affect in any way” the\\ndecision to terminate him. Id. (internal quotation marks\\nomitted). The instruction may have short-circuited the jury’s\\n\\f14 FROST V. BNSF\\n\\ndeliberation by offering a path to finding for BNSF without\\nrequiring that it assess all of the relevant statutory burdens.\\n\\n BNSF argues that honest belief instructions have been\\napproved in FRSA cases, citing Armstrong v. BNSF Railway\\nCo., 880 F.3d 377 (7th Cir. 2018). In Armstrong, the jury\\nwas instructed that:\\n\\n Defendant cannot be held liable under the\\n FRSA if you conclude that Defendant\\n terminated Plaintiff’s employment based on\\n its honestly held belief that Plaintiff did not\\n engage in protected activity under the FRSA\\n in good faith.\\n\\nId. at 381 (emphasis added).\\n\\n Armstrong does not help BNSF because the primary\\ndispute in that case was about whether the plaintiff had\\nactually engaged in protected conduct in the first place, not\\nwhether the protected conduct was a contributing factor to the\\nplaintiff’s discipline. Id. at 382. Because there was evidence\\nin Armstrong that the employer may have honestly believed\\nthat the employee did not engage in protected activity,\\nArmstrong’s honest belief instruction was not improper. That\\nsaid, the only conclusion to be drawn from Armstrong is the\\nrecognition that it would not be possible to show that an\\nemployer retaliated in response to an employee engaging in\\nprotected activity if the employer could demonstrate that it\\nhonestly believed no protected activity had occurred.6\\n\\n\\n 6\\n Even under the circumstances in Armstrong, we note that the\\nSeventh Circuit only tepidly approved the instruction as not the “clearest\\npossible statement of the applicable law[.]” 880 F.3d at 382.\\n\\f FROST V. BNSF 15\\n\\n Because there was no dispute that Frost engaged in\\nprotected conduct, Armstrong is distinguishable and the\\ndistrict court’s use of the honest belief instruction was\\ntherefore legally erroneous.\\n\\n B.\\n\\n We next determine whether the erroneous honest belief\\ninstruction warrants a new trial.\\n\\n Frost provided evidence that other BNSF employees\\nfouled the track during the April 2012 incident, but that they\\ndid not file injury reports and were not disciplined. The\\njurors could construe this evidence of unpunished track-\\nfoulers as proof of disparate treatment and retaliatory\\nconduct—i.e., that Frost’s injury report was a contributory\\nfactor to his termination. However, the jurors also may have\\nfound that evidence not very credible or they may have\\ninstead believed the testimony of BNSF’s witnesses that\\nFrost’s injury report played no part in the decision to\\ndiscipline him. Though a properly instructed jury may have\\nreached a verdict for BNSF, we must presume prejudice\\nwhere an erroneous jury instruction is given. See Galdamez,\\n415 F.3d at 1025. The burden at this stage is thus on BNSF\\nto show it is more probable than not that the jury would have\\nreached the same verdict without the honest belief instruction.\\nId. BNSF does not satisfy that burden.\\n\\n BNSF’s counsel acknowledged during its argument\\nbefore our court that we simply do not know exactly how the\\njury evaluated the evidence in this case. The verdict form\\nwas relatively sparse, asking only two questions: (1) whether\\nFrost had met his prima facie case of showing his protected\\nactivity was a contributing factor; and (2) whether BNSF\\n\\f16 FROST V. BNSF\\n\\nsuccessfully rebutted Frost’s case by showing that it would\\nhave imposed the same disciplinary action with or without the\\nprotected conduct. The jury answered “no” to the first\\nquestion and did not answer the second.\\n\\n Because we do not know how the jurors applied the\\nhonest belief instruction, we cannot find that the presumption\\nof prejudice is rebutted. BNSF presented strong evidence\\n(video from the train) that Frost fouled the track. The jurors\\ntherefore may have felt it unnecessary to unravel any\\npotential factual tensions—e.g., the dispute between Frost’s\\nand BNSF’s witnesses about whether other laborers were\\nfouling the track at the same time Frost was—or they might\\nhave discounted questions about whether Frost’s injury report\\nplayed any role (even if only a small one) in BNSF’s decision\\nto discipline Frost. We also do not know whether the jurors\\nconcluded that Frost would have been terminated whether or\\nnot he filed an injury report because they did not reach that\\nquestion on the verdict form. We are therefore bound to\\npresume the improper instruction was prejudicial. See\\nGaldamez, 415 F.3d at 1025.\\n\\n We also cannot conclude that the presence of other,\\naccurate instructions eliminated the possibility that prejudice\\nresulted from the honest belief instruction, although we\\npresume that juries listen to and follow instructions, and we\\nhave previously found an erroneous jury instruction to be\\nharmless where the instructions as a whole were accurate.\\nSee, e.g., Sanderson v. Chapman, 487 F.2d 264, 267 (9th Cir.\\n1973). There is relatively clear evidence that Frost\\ncommitted two safety violations, and the honest belief\\ninstruction given here effectively allowed the jury to find for\\nBNSF on that basis alone. Because the erroneous instruction\\nprovided a shortcut that the jury may well have taken, the jury\\n\\f FROST V. BNSF 17\\n\\nmay not have decided whether Frost’s injury report was a\\nfactor that contributed to his termination or whether BNSF\\nwould have terminated him even if he had not reported an\\ninjury. Accordingly, the other jury instructions in this case do\\nnot rebut the presumption of prejudice.\\n\\n BNSF suggested during argument before our court that\\nlay jury members would have understood the instruction’s use\\nof “based on” to mean “solely or exclusively based on,” so the\\njury must have concluded that Frost’s injury report was not a\\nfactor (contributory or otherwise) to his termination. In our\\nview, that is not an obvious or intuitive conclusion. It is just\\nas likely that a lay juror would conclude that if a certain\\nfactor was the primary cause of a given consequence, the\\nconsequence was “based on” that factor, regardless of\\nwhatever other causative factors were shown at trial. More\\nimportantly, the record in this case does not permit much of\\nan inference either way, and in the absence of more precise\\nlanguage these (and perhaps other) interpretations of this\\ninstruction were left available to the jury. BNSF’s\\nspeculation about how the jury might have applied the\\nerroneous honest belief instruction therefore cannot rebut the\\npresumption of prejudice or effectively show it is more\\nprobable than not that jurors would have reached the same\\nverdict with or without the honest belief instruction.\\nGaldamez, 415 F.3d at 1025.\\n\\n V.\\n\\n The honest belief instruction was legally erroneous and\\nBNSF has failed to rebut the presumption that the improper\\n\\f18 FROST V. BNSF\\n\\ninstruction prejudiced Frost. Accordingly, we reverse the\\ndistrict court’s determination and remand for a new trial.\\n\\n REVERSED AND REMANDED.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4363100/\", \"author_raw\": \"CHRISTEN, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"FERDINAND F FERNANDEZ"},"judge2":{"kind":"string","value":"N RANDY SMITH"},"judge3":{"kind":"string","value":"MORGAN CHRISTEN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4585847/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Michael Frost v. Bnsf Railway Company\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-30\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nMICHAEL A. FROST, No. 17-35513\n Plaintiff-Appellant,\n D.C. No.\n v. 9:15-cv-00124-DWM\n\nBNSF RAILWAY COMPANY,\n Defendant-Appellee. OPINION\n\n\n Appeal from the United States District Court\n for the District of Montana\n Donald W. Molloy, Senior District Judge, Presiding\n\n Argued and Submitted October 9, 2018\n Seattle, Washington\n\n Filed January 30, 2019\n\n Before: Ferdinand F. Fernandez, N. Randy Smith,\n and Morgan Christen, Circuit Judges.\n\n Opinion by Judge Christen\n\f2 FROST V. BNSF\n\n SUMMARY*\n\n\n Labor Law\n\n The panel reversed the district court’s judgment, after a\njury trial, in favor of the defendant in an action under the\nFederal Railroad Safety Act and remanded for a new trial.\n\n Michael Frost alleged that BNSF Railway Co. violated\nthe FRSA when it disciplined and ultimately terminated him\nafter he committed a pair of safety rule violations and filed an\ninjury report. At trial, the district court instructed the jury\nthat BNSF could not be liable if it terminated Frost due to an\n“honest belief” that he violated the company’s safety rules.\n\n The panel held that the “honest belief” jury instruction\nwas inconsistent with the FRSA’s clear statutory mandate\nand prior caselaw. To establish a claim of unlawful\ndiscrimination under the FRSA, a plaintiff must prove by a\npreponderance of the evidence that his protected conduct was\na contributing factor in an adverse employment action. The\npanel held that there is no separate requirement that the\nplaintiff prove that his employer acted with discriminatory\nintent. Rather, by proving that an employee’s protected\nactivity contributed in some way to the employer’s adverse\nconduct, the FRSA plaintiff has proven that the employer\nacted with some level of retaliatory intent. The panel held\nthat the “honest belief” jury instruction therefore misstated\nthe applicable law, and BNSF did not rebut the presumption\n\n\n *\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f FROST V. BNSF 3\n\nof prejudice. Accordingly, the panel reversed the district\ncourt’s determination and remanded for a new trial.\n\n\n COUNSEL\n\nLucas J. Kaster (argued) and James H. Kaster, Nichols Kaster\nLLP, Minneapolis, Minnesota, for Plaintiff-Appellant.\n\nBryan P. Neal (argued), Thompson & Knight LLP, Dallas,\nTexas; Keith M. Gorman, Hall & Evans LLC, Denver,\nColorado; Paul S. Balanon, General Attorney, BNSF Railway\nCompany, Fort Worth, Texas; for Defendant-Appellee.\n\n\n OPINION\n\nCHRISTEN, Circuit Judge:\n\n Michael Frost sued the BNSF Railway Company, alleging\nthat it violated the Federal Railroad Safety Act (FRSA) when\nit disciplined and ultimately terminated him after he\ncommitted a pair of safety rule violations and filed an injury\nreport. At trial, the district court instructed the jury that\nBNSF could not be liable if it terminated Frost due to an\n“honest belief” that he violated the company’s safety rules.\nThe jury returned a verdict for BNSF. We review the\npropriety of the “honest belief” jury instruction. Because it\nis inconsistent with the FRSA’s clear statutory mandate and\nour prior caselaw, we reverse and remand for a new trial.\n\f4 FROST V. BNSF\n\n I.\n\n BNSF is a large railway company that operates freight\ntrains throughout the United States. Due to the many\npotential hazards associated with powerful locomotives\noperating near train and track workers, BNSF imposes a\nnumber of safety rules on its employees to minimize risks and\nprevent injuries. Among other things, those rules prohibit\nemployees from approaching—or “fouling”—a track unless\nthey have the proper authority and a work-related reason to be\nnear the tracks.\n\n BNSF hired Frost as a track laborer in June 2011. Within\nthe first two years of his employment, Frost was disciplined\ntwice for fouling the track. The first violation occurred on\nApril 18, 2012. Frost was working with a crew that was\nrepairing a section of track near Brimstone, Montana. The\ncrew was removing and replacing a side track that ran\nadjacent to a main line. The crew members secured track\nauthority—i.e., permission to be near the tracks because no\ntrains would be running on the tracks—for both tracks at the\nstart of their shift in order to move their equipment into\nposition on the side track. The crew’s foreman, George\nSchultz, released the crew’s track authority for the main line\nonce the equipment was in place on the side track, but he\napparently failed to relay that information to Frost or the rest\nof the work crew.\n\n During the course of the shift, Frost believed that the\nrepair equipment was not being anchored properly so he\nmoved toward the main line track to get a better view. At that\npoint, a train traveling approximately 60 miles per hour\npassed by on the main line, narrowly missing Frost. The\ncrew stopped working and Frost was taken to the hospital for\n\f FROST V. BNSF 5\n\nexamination. On April 20, 2012, BNSF issued a notice of\ninvestigation to Frost and Schultz regarding the near-miss\nincident. Frost returned to work a few days later and filed an\ninjury report describing his injury as “PTSD following a\ntraumatic incident.”\n\n BNSF held a disciplinary hearing in July 2012. Frost\nargued at the hearing that he was being singled out because\nseveral of his fellow laborers (who had not filed injury\nreports) acknowledged that they were also near the track but\nthey were not disciplined. Frost also claimed that inspecting\nthe equipment’s anchoring pattern was a legitimate job-\nrelated reason for approaching the main line. The hearing\nofficer, Robert Rindy, rejected both arguments. Rindy\nreviewed video from the train which showed no other\nlaborers near the main line track. He also concluded that\nFrost could have checked the anchoring pattern from other\nlocations without approaching the main line track. Because\nRindy determined that Frost fouled the track and committed\na Level S (Serious) safety violation, Frost received a 30-day\nrecord suspension and was placed on a 36-month review\nperiod for that incident.1 On October 9, 2012, Frost\nresponded by filing an FRSA retaliation complaint with\nOSHA.\n\n Frost’s second track violation occurred on November 8,\n2012, when he was working on a crew in Wyoming as a\ngrapple truck driver. Frost arrived at the work site and parked\nhis truck by a railroad crossing with the back end of the truck\noverhanging the track. Frost then entered a trailer where\nseveral other BNSF employees were located, and apparently\nsaid something like “I guess I better get the authority since\n\n 1\n Schultz, the crew foreman, was also disciplined for this incident.\n\f6 FROST V. BNSF\n\nI’m already fouling the track.” Because BNSF employees are\nrequired to know the precise details of their track authority\nbefore fouling a track, the other employees became concerned\nand a supervisor was called. The supervisor spoke with Frost\nand determined that he did not appear to have secured track\nauthority before parking his truck. The supervisor removed\nFrost from service and reported the incident to Keith\nSamples, a division manager.\n\n BNSF issued a notice of investigation and conducted a\nhearing regarding the second incident in January of 2013.\nFollowing the hearing, Samples found that Frost did not know\nthe details of his track authority and that he had violated\nBNSF safety rules. Samples then concluded that Frost should\nbe discharged due to the seriousness of the violation and the\nfact that it occurred so soon after the first disciplinary\nincident. It is undisputed that Frost would not have been\ndischarged if the first incident had not occurred.\n\n Frost requested reinstatement. After an internal review,\nBNSF decided to reinstate Frost, due to a concern that BNSF\nwould not be able to justify the discipline imposed for the\nApril 2012 incident if Frost challenged his dismissal before\nan arbitrator. Frost was reinstated, with back pay, and BNSF\nremoved the April 2012 disciplinary incident from his record.\n\n Nevertheless, Frost filed suit in September of 2015\nalleging retaliation under the FRSA for Frost’s engagement\nin protected activities—i.e., for reporting the PTSD injury\nfollowing the first incident and for filing an OSHA complaint\nalleging disciplinary retaliation shortly thereafter. Frost’s\ncomplaint alleged that these protected activities were\ncontributing factors to BNSF’s decision to terminate him, and\n\f FROST V. BNSF 7\n\nhe sought an award of emotional distress damages, punitive\ndamages, and attorney’s fees.\n\n The matter was tried to a jury over four days. At trial,\nRindy testified that he disciplined Frost because such\ndiscipline was required by BNSF’s employee performance\naccountability policy, and not because Frost had filed an\ninjury report or engaged in any other protected activities.\nAnd Samples testified that when he decided in 2013 that Frost\nshould be discharged, he was not aware that Frost had filed an\nOSHA complaint concerning the first incident. At the close\nof the evidence, the trial court instructed the jury, over Frost’s\nobjection, that:\n\n BNSF cannot be held liable under the Federal\n Railroad Safety Act if you conclude that\n defendant terminated plaintiff’s employment\n based on its honestly held belief that plaintiff\n engaged in the conduct for which he was\n disciplined.\n\nThe jury returned a verdict in favor of BNSF.\n\n Frost moved for a new trial, arguing that the honest belief\njury instruction was erroneous and that it substantially\nprejudiced him. He also argued the he deserved a new trial\nbecause BNSF improperly withheld evidence regarding a\npotential retaliatory motive for terminating him—a\n“scorecard” policy that rated each manager, in part, on the\nnumber of injuries that occurred on his or her watch. The\ntrial court acknowledged that BNSF appeared to “have hidden\nthe ball” by not producing the scorecard policy in discovery,\nbut it found no prejudice. The district court was also\n\f8 FROST V. BNSF\n\nunpersuaded by Frost’s challenge to the honest belief\ninstruction. Frost appealed.2\n\n II.\n\n We review de novo whether a jury instruction properly\nstates the elements that must be proved at trial. Chuman v.\nWright, 76 F.3d 292, 294 (9th Cir. 1996). An instruction is\nerroneous when, viewing the instructions as a whole, the\n“substance of the applicable law was [not] fairly and correctly\ncovered.” Miller v. Republic Nat’l Life Ins. Co., 789 F.2d\n1336, 1339 (9th Cir. 1986) (alteration in original and citation\nomitted). If there is an error, we presume that the error was\nprejudicial and the non-moving party bears the burden of\nestablishing that “it is more probable than not” that a properly\ninstructed jury “would have reached the same verdict.”\nGaldamez v. Potter, 415 F.3d 1015, 1025 (9th Cir. 2005)\n(quoting Obrey v. Johnson, 400 F.3d 691, 701 (9th Cir.\n2005)) (internal quotation marks omitted).\n\n III.\n\n We first examine the appropriate standards governing a\nclaim of unlawful discrimination under the FRSA. As we\nrecently explained in Rookaird v. BNSF Railway Co.,\n908 F.3d 451 (9th Cir. 2018), the FRSA expressly invokes the\n\n\n\n\n 2\n Because we reverse the district court’s denial of Frost’s request for\na new trial on the basis of the erroneous honest belief jury instruction, we\ndo not address Frost’s claim that he is also entitled to a new trial because\nBNSF withheld relevant and material documents in discovery.\n\f FROST V. BNSF 9\n\nAIR-213 framework set forth in 49 U.S.C. § 42121(b) for\nclaims of unlawful discrimination. Id. at 459.4\n\n To establish a claim of unlawful discrimination under\nthe FRSA, the plaintiff must prove by a preponderance of\nthe evidence that his or her protected conduct “was a\ncontributing factor in the unfavorable personnel action\nalleged in the complaint.” Id. at 460 (citing 49 U.S.C.\n§ 42121(b)(2)(B)(iii)). A contributing factor is “any factor,\nwhich alone or in connection with other factors, tends to\naffect in any way the outcome of the decision.” Rookaird,\n908 F.3d at 461 (internal quotation marks omitted). If the\nplaintiff succeeds, the employer can attempt to rebut the\nallegations and defeat the claim by demonstrating “by clear\nand convincing evidence that the employer would have taken\nthe same unfavorable personnel action in the absence of [the\nprotected activity].” 49 U.S.C. § 42121(b)(2)(B)(iv).\n\n Importantly, the only burden the statute places on FRSA\nplaintiffs is to ultimately prove, by a preponderance of the\nevidence, that their protected conduct was a contributing\nfactor to the adverse employment action—i.e., that it\n\n\n 3\n “AIR-21” refers to the Wendell H. Ford Aviation Investment and\nReform Act for the 21st Century, Pub. L. No. 106-181, 114 Stat. 61\n(2000), which includes protections for whistleblowers and prohibits\ndiscrimination against an air carrier employee who reports information\nrelated to air carrier safety. Congress expressly adopted the same standard\nfor the FRSA. 49 U.S.C. § 20109(d)(2).\n 4\n We are aware that under this framework there are two stages, a\nprima facie stage and a substantive stage. We are here concerned\nprimarily with the substantive stage, as this appeal causes us to consider\nonly whether the honest belief instruction altered the substance of what\nneeded to be proven at trial.\n\f10 FROST V. BNSF\n\n“tend[ed] to affect” the decision in some way. Id.\n§ 42121(b)(2)(B); Rookaird, 908 F.3d at 461.\n\n BNSF argues that the FRSA is a “discrimination statute”\nand that plaintiffs must therefore affirmatively prove that\ntheir employers acted with discriminatory intent or animus in\norder to bring claims for unlawful retaliation. We recognize\nthat the FRSA, by its terms, describes and forbids intentional\nretaliation, 49 U.S.C. § 20109(a), meaning that employers\nmust act with impermissible intent or animus to violate the\nstatute. What BNSF misses is that the only proof of\ndiscriminatory intent that a plaintiff is required to show is that\nhis or her protected activity was a “contributing factor” in the\nresulting adverse employment action. Showing that an\nemployer acted in retaliation for protected activity is the\nrequired showing of intentional discrimination; there is no\nrequirement that FRSA plaintiffs separately prove\ndiscriminatory intent. 49 U.S.C. § 42121(b)(2)(B). Indeed,\nin Tamosaitis v. URS Inc., 781 F.3d 468 (9th Cir. 2015), we\nreviewed claims under the Energy Reorganization Act’s\nwhistleblower retaliation protections that employ the same\nstatutory framework as the FRSA. Id. at 480. We explained:\n“Under this framework, the presence of an employer’s\nsubjective retaliatory animus is irrelevant. All a plaintiff\nmust show is that his ‘protected activity was a contributing\nfactor in the adverse [employment] action.’” Id. at 482\n(alterations in original) (quoting 29 C.F.R. § 24.104(f)(1)).\nCoppinger-Martin v. Solis, 627 F.3d 745 (9th Cir. 2010) also\ninvolved a retaliation claim arising in the context of a statute\nwith the same “contributing factor” framework. There, we\nexplained that to meet her burden at the prima facie stage a\nplaintiff need not “conclusively demonstrate the employer’s\nretaliatory motive.” Id. at 750 (emphasis added). Rather, the\nemployer’s retaliatory motive was established by proving that\n\f FROST V. BNSF 11\n\nthe protected conduct was a contributing factor to the\nemployer’s adverse action.\n\n More recently, in Rookaird, we quoted the Eighth\nCircuit’s decision in Kuduk v. BNSF Railway Co., 768 F.3d\n786 (8th Cir. 2014), and said that “‘the contributing factor\nthat an employee must prove is intentional retaliation\nprompted by the employee engaging in protected activity.’”\nRookaird, 908 F.3d at 461–62 (quoting Kuduk, 768 F.3d at\n791) (alteration omitted). BNSF cites this language from the\nKuduk decision to argue that the FRSA requires proof of\ndiscriminatory animus, separate from and beyond the\nstatutorily required evidence that the plaintiff’s protected\nconduct was a contributing factor in the adverse employment\naction. But as Tamosaitis and Coppinger-Martin have\nshown, we have already rejected that premise as inconsistent\nwith the FRSA’s articulation of each party’s required\nevidentiary burden. In fact, in Kuduk, the Eighth Circuit\nrelied on our Coppinger-Martin decision and acknowledged\nthat plaintiff need not provide “conclusive[]” proof of the\nemployer’s animus to establish the plaintiff’s prima facie\ncase. See Kuduk, 768 F.3d at 791. Rookaird’s citation to\nKuduk does not imply, much less impose, an obligation to\nprove retaliatory intent that is not included within the FRSA’s\nclear and explicit statutory scheme. Instead, Rookaird simply\nconfirms that although intent or animus is part of an FRSA\nplaintiff’s case, showing that plaintiff’s protected conduct\nwas a contributing factor is the required showing of intent or\n“intentional retaliation[.]” Id. That is, by proving that an\nemployee’s protected activity contributed in some way to the\nemployer’s adverse conduct, the FRSA plaintiff has proven\nthat the employer acted with some level of retaliatory intent.\n\f12 FROST V. BNSF\n\n Consistent with the language of 49 U.S.C.\n§ 42121(b)(2)(B) and our prior decisions in Tamosaitis,\nCoppinger-Martin, and Rookaird, we hold that although the\nFRSA’s prohibition on “discriminat[ing] against an\nemployee” ultimately requires a showing of the employer’s\ndiscriminatory or retaliatory intent, FRSA plaintiffs satisfy\nthat burden by proving that their protected activity was a\ncontributing factor to the adverse employment decision.5\nThere is no requirement, at either the prima facie stage or the\nsubstantive stage, that a plaintiff make any additional\nshowing of discriminatory intent.\n\n IV.\n\n A.\n\n Frost argues that the district court’s honest belief jury\ninstruction misstated the applicable law. We agree.\n\n The district court instructed the jury that:\n\n BNSF cannot be held liable under the Federal\n Railroad Safety Act if you conclude that\n defendant terminated plaintiff’s employment\n based on its honestly held belief that plaintiff\n engaged in the conduct for which he was\n disciplined.\n\n\n 5\n This holding is consistent with recent authority from the Third\nCircuit, see Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152,\n158 (3d Cir. 2013), but we recognize that it may conflict with authority\nfrom the Seventh and Eighth Circuits. However, we are bound by our\nprior caselaw as well as the explicit statutory language of 49 U.S.C.\n§§ 20109(d) and 42121(b)(2)(B).\n\f FROST V. BNSF 13\n\n That instruction is not consistent with the FRSA’s\nstatutory scheme. Frost needed to prove only that his\nprotected conduct (filing an injury report and an OSHA\ncomplaint) was a contributing factor to his ultimate\ntermination. To rebut Frost’s case, BNSF had to prove that\nthe same discipline would have been imposed with or without\nthe injury report or the OSHA complaint. See 49 U.S.C.\n§ 42121(b)(2)(B); Rookaird, 908 F.3d at 460. This\nnecessarily means it was possible for Frost to show retaliation\neven if BNSF had an honestly-held, justified belief that he\nfouled the track. Frost was not required to show that his\ninjury report was the only reason or that no other factors\ninfluenced BNSF’s decision to terminate him. Nor does the\ninstruction’s use of “based on” foreclose the possibility that\nan impermissible factor or consideration contributed to the\ndecision to discipline Frost. As Rookaird explained,\n“contributing factors” may be quite modest—they include\n“any factor” which “tends to affect in any way the outcome\nof the decision.” Id. at 461 (internal quotation marks\nomitted). Under the AIR-21 standard, Frost would be entitled\nto relief even if his filing of an injury report played only a\nvery small role in BNSF’s decision-making process.\n\n Instructing the jurors that they could find for BNSF by\nlooking only at whether BNSF honestly believed that Frost\nbroke a rule risked denying Frost a remedy to which he may\nbe entitled under the statute, particularly because the evidence\nhere appears to show relatively clearly that Frost fouled the\ntrack. The instruction may have encouraged the jury to skirt\nthe actual issue and improperly focus on whether discipline\nwas justified for Frost’s safety violation instead of whether\nhis protected conduct “tend[ed] to affect in any way” the\ndecision to terminate him. Id. (internal quotation marks\nomitted). The instruction may have short-circuited the jury’s\n\f14 FROST V. BNSF\n\ndeliberation by offering a path to finding for BNSF without\nrequiring that it assess all of the relevant statutory burdens.\n\n BNSF argues that honest belief instructions have been\napproved in FRSA cases, citing Armstrong v. BNSF Railway\nCo., 880 F.3d 377 (7th Cir. 2018). In Armstrong, the jury\nwas instructed that:\n\n Defendant cannot be held liable under the\n FRSA if you conclude that Defendant\n terminated Plaintiff’s employment based on\n its honestly held belief that Plaintiff did not\n engage in protected activity under the FRSA\n in good faith.\n\nId. at 381 (emphasis added).\n\n Armstrong does not help BNSF because the primary\ndispute in that case was about whether the plaintiff had\nactually engaged in protected conduct in the first place, not\nwhether the protected conduct was a contributing factor to the\nplaintiff’s discipline. Id. at 382. Because there was evidence\nin Armstrong that the employer may have honestly believed\nthat the employee did not engage in protected activity,\nArmstrong’s honest belief instruction was not improper. That\nsaid, the only conclusion to be drawn from Armstrong is the\nrecognition that it would not be possible to show that an\nemployer retaliated in response to an employee engaging in\nprotected activity if the employer could demonstrate that it\nhonestly believed no protected activity had occurred.6\n\n\n 6\n Even under the circumstances in Armstrong, we note that the\nSeventh Circuit only tepidly approved the instruction as not the “clearest\npossible statement of the applicable law[.]” 880 F.3d at 382.\n\f FROST V. BNSF 15\n\n Because there was no dispute that Frost engaged in\nprotected conduct, Armstrong is distinguishable and the\ndistrict court’s use of the honest belief instruction was\ntherefore legally erroneous.\n\n B.\n\n We next determine whether the erroneous honest belief\ninstruction warrants a new trial.\n\n Frost provided evidence that other BNSF employees\nfouled the track during the April 2012 incident, but that they\ndid not file injury reports and were not disciplined. The\njurors could construe this evidence of unpunished track-\nfoulers as proof of disparate treatment and retaliatory\nconduct—i.e., that Frost’s injury report was a contributory\nfactor to his termination. However, the jurors also may have\nfound that evidence not very credible or they may have\ninstead believed the testimony of BNSF’s witnesses that\nFrost’s injury report played no part in the decision to\ndiscipline him. Though a properly instructed jury may have\nreached a verdict for BNSF, we must presume prejudice\nwhere an erroneous jury instruction is given. See Galdamez,\n415 F.3d at 1025. The burden at this stage is thus on BNSF\nto show it is more probable than not that the jury would have\nreached the same verdict without the honest belief instruction.\nId. BNSF does not satisfy that burden.\n\n BNSF’s counsel acknowledged during its argument\nbefore our court that we simply do not know exactly how the\njury evaluated the evidence in this case. The verdict form\nwas relatively sparse, asking only two questions: (1) whether\nFrost had met his prima facie case of showing his protected\nactivity was a contributing factor; and (2) whether BNSF\n\f16 FROST V. BNSF\n\nsuccessfully rebutted Frost’s case by showing that it would\nhave imposed the same disciplinary action with or without the\nprotected conduct. The jury answered “no” to the first\nquestion and did not answer the second.\n\n Because we do not know how the jurors applied the\nhonest belief instruction, we cannot find that the presumption\nof prejudice is rebutted. BNSF presented strong evidence\n(video from the train) that Frost fouled the track. The jurors\ntherefore may have felt it unnecessary to unravel any\npotential factual tensions—e.g., the dispute between Frost’s\nand BNSF’s witnesses about whether other laborers were\nfouling the track at the same time Frost was—or they might\nhave discounted questions about whether Frost’s injury report\nplayed any role (even if only a small one) in BNSF’s decision\nto discipline Frost. We also do not know whether the jurors\nconcluded that Frost would have been terminated whether or\nnot he filed an injury report because they did not reach that\nquestion on the verdict form. We are therefore bound to\npresume the improper instruction was prejudicial. See\nGaldamez, 415 F.3d at 1025.\n\n We also cannot conclude that the presence of other,\naccurate instructions eliminated the possibility that prejudice\nresulted from the honest belief instruction, although we\npresume that juries listen to and follow instructions, and we\nhave previously found an erroneous jury instruction to be\nharmless where the instructions as a whole were accurate.\nSee, e.g., Sanderson v. Chapman, 487 F.2d 264, 267 (9th Cir.\n1973). There is relatively clear evidence that Frost\ncommitted two safety violations, and the honest belief\ninstruction given here effectively allowed the jury to find for\nBNSF on that basis alone. Because the erroneous instruction\nprovided a shortcut that the jury may well have taken, the jury\n\f FROST V. BNSF 17\n\nmay not have decided whether Frost’s injury report was a\nfactor that contributed to his termination or whether BNSF\nwould have terminated him even if he had not reported an\ninjury. Accordingly, the other jury instructions in this case do\nnot rebut the presumption of prejudice.\n\n BNSF suggested during argument before our court that\nlay jury members would have understood the instruction’s use\nof “based on” to mean “solely or exclusively based on,” so the\njury must have concluded that Frost’s injury report was not a\nfactor (contributory or otherwise) to his termination. In our\nview, that is not an obvious or intuitive conclusion. It is just\nas likely that a lay juror would conclude that if a certain\nfactor was the primary cause of a given consequence, the\nconsequence was “based on” that factor, regardless of\nwhatever other causative factors were shown at trial. More\nimportantly, the record in this case does not permit much of\nan inference either way, and in the absence of more precise\nlanguage these (and perhaps other) interpretations of this\ninstruction were left available to the jury. BNSF’s\nspeculation about how the jury might have applied the\nerroneous honest belief instruction therefore cannot rebut the\npresumption of prejudice or effectively show it is more\nprobable than not that jurors would have reached the same\nverdict with or without the honest belief instruction.\nGaldamez, 415 F.3d at 1025.\n\n V.\n\n The honest belief instruction was legally erroneous and\nBNSF has failed to rebut the presumption that the improper\n\f18 FROST V. BNSF\n\ninstruction prejudiced Frost. Accordingly, we reverse the\ndistrict court’s determination and remand for a new trial.\n\n REVERSED AND REMANDED.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Michael Frost v. Bnsf Railway Company\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-01-30\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nMICHAEL A. FROST, No. 17-35513\\n Plaintiff-Appellant,\\n D.C. No.\\n v. 9:15-cv-00124-DWM\\n\\nBNSF RAILWAY COMPANY,\\n Defendant-Appellee. OPINION\\n\\n\\n Appeal from the United States District Court\\n for the District of Montana\\n Donald W. Molloy, Senior District Judge, Presiding\\n\\n Argued and Submitted October 9, 2018\\n Seattle, Washington\\n\\n Filed January 30, 2019\\n\\n Before: Ferdinand F. Fernandez, N. Randy Smith,\\n and Morgan Christen, Circuit Judges.\\n\\n Opinion by Judge Christen\\n\\f2 FROST V. BNSF\\n\\n SUMMARY*\\n\\n\\n Labor Law\\n\\n The panel reversed the district court’s judgment, after a\\njury trial, in favor of the defendant in an action under the\\nFederal Railroad Safety Act and remanded for a new trial.\\n\\n Michael Frost alleged that BNSF Railway Co. violated\\nthe FRSA when it disciplined and ultimately terminated him\\nafter he committed a pair of safety rule violations and filed an\\ninjury report. At trial, the district court instructed the jury\\nthat BNSF could not be liable if it terminated Frost due to an\\n“honest belief” that he violated the company’s safety rules.\\n\\n The panel held that the “honest belief” jury instruction\\nwas inconsistent with the FRSA’s clear statutory mandate\\nand prior caselaw. To establish a claim of unlawful\\ndiscrimination under the FRSA, a plaintiff must prove by a\\npreponderance of the evidence that his protected conduct was\\na contributing factor in an adverse employment action. The\\npanel held that there is no separate requirement that the\\nplaintiff prove that his employer acted with discriminatory\\nintent. Rather, by proving that an employee’s protected\\nactivity contributed in some way to the employer’s adverse\\nconduct, the FRSA plaintiff has proven that the employer\\nacted with some level of retaliatory intent. The panel held\\nthat the “honest belief” jury instruction therefore misstated\\nthe applicable law, and BNSF did not rebut the presumption\\n\\n\\n *\\n This summary constitutes no part of the opinion of the court. It has\\nbeen prepared by court staff for the convenience of the reader.\\n\\f FROST V. BNSF 3\\n\\nof prejudice. Accordingly, the panel reversed the district\\ncourt’s determination and remanded for a new trial.\\n\\n\\n COUNSEL\\n\\nLucas J. Kaster (argued) and James H. Kaster, Nichols Kaster\\nLLP, Minneapolis, Minnesota, for Plaintiff-Appellant.\\n\\nBryan P. Neal (argued), Thompson & Knight LLP, Dallas,\\nTexas; Keith M. Gorman, Hall & Evans LLC, Denver,\\nColorado; Paul S. Balanon, General Attorney, BNSF Railway\\nCompany, Fort Worth, Texas; for Defendant-Appellee.\\n\\n\\n OPINION\\n\\nCHRISTEN, Circuit Judge:\\n\\n Michael Frost sued the BNSF Railway Company, alleging\\nthat it violated the Federal Railroad Safety Act (FRSA) when\\nit disciplined and ultimately terminated him after he\\ncommitted a pair of safety rule violations and filed an injury\\nreport. At trial, the district court instructed the jury that\\nBNSF could not be liable if it terminated Frost due to an\\n“honest belief” that he violated the company’s safety rules.\\nThe jury returned a verdict for BNSF. We review the\\npropriety of the “honest belief” jury instruction. Because it\\nis inconsistent with the FRSA’s clear statutory mandate and\\nour prior caselaw, we reverse and remand for a new trial.\\n\\f4 FROST V. BNSF\\n\\n I.\\n\\n BNSF is a large railway company that operates freight\\ntrains throughout the United States. Due to the many\\npotential hazards associated with powerful locomotives\\noperating near train and track workers, BNSF imposes a\\nnumber of safety rules on its employees to minimize risks and\\nprevent injuries. Among other things, those rules prohibit\\nemployees from approaching—or “fouling”—a track unless\\nthey have the proper authority and a work-related reason to be\\nnear the tracks.\\n\\n BNSF hired Frost as a track laborer in June 2011. Within\\nthe first two years of his employment, Frost was disciplined\\ntwice for fouling the track. The first violation occurred on\\nApril 18, 2012. Frost was working with a crew that was\\nrepairing a section of track near Brimstone, Montana. The\\ncrew was removing and replacing a side track that ran\\nadjacent to a main line. The crew members secured track\\nauthority—i.e., permission to be near the tracks because no\\ntrains would be running on the tracks—for both tracks at the\\nstart of their shift in order to move their equipment into\\nposition on the side track. The crew’s foreman, George\\nSchultz, released the crew’s track authority for the main line\\nonce the equipment was in place on the side track, but he\\napparently failed to relay that information to Frost or the rest\\nof the work crew.\\n\\n During the course of the shift, Frost believed that the\\nrepair equipment was not being anchored properly so he\\nmoved toward the main line track to get a better view. At that\\npoint, a train traveling approximately 60 miles per hour\\npassed by on the main line, narrowly missing Frost. The\\ncrew stopped working and Frost was taken to the hospital for\\n\\f FROST V. BNSF 5\\n\\nexamination. On April 20, 2012, BNSF issued a notice of\\ninvestigation to Frost and Schultz regarding the near-miss\\nincident. Frost returned to work a few days later and filed an\\ninjury report describing his injury as “PTSD following a\\ntraumatic incident.”\\n\\n BNSF held a disciplinary hearing in July 2012. Frost\\nargued at the hearing that he was being singled out because\\nseveral of his fellow laborers (who had not filed injury\\nreports) acknowledged that they were also near the track but\\nthey were not disciplined. Frost also claimed that inspecting\\nthe equipment’s anchoring pattern was a legitimate job-\\nrelated reason for approaching the main line. The hearing\\nofficer, Robert Rindy, rejected both arguments. Rindy\\nreviewed video from the train which showed no other\\nlaborers near the main line track. He also concluded that\\nFrost could have checked the anchoring pattern from other\\nlocations without approaching the main line track. Because\\nRindy determined that Frost fouled the track and committed\\na Level S (Serious) safety violation, Frost received a 30-day\\nrecord suspension and was placed on a 36-month review\\nperiod for that incident.1 On October 9, 2012, Frost\\nresponded by filing an FRSA retaliation complaint with\\nOSHA.\\n\\n Frost’s second track violation occurred on November 8,\\n2012, when he was working on a crew in Wyoming as a\\ngrapple truck driver. Frost arrived at the work site and parked\\nhis truck by a railroad crossing with the back end of the truck\\noverhanging the track. Frost then entered a trailer where\\nseveral other BNSF employees were located, and apparently\\nsaid something like “I guess I better get the authority since\\n\\n 1\\n Schultz, the crew foreman, was also disciplined for this incident.\\n\\f6 FROST V. BNSF\\n\\nI’m already fouling the track.” Because BNSF employees are\\nrequired to know the precise details of their track authority\\nbefore fouling a track, the other employees became concerned\\nand a supervisor was called. The supervisor spoke with Frost\\nand determined that he did not appear to have secured track\\nauthority before parking his truck. The supervisor removed\\nFrost from service and reported the incident to Keith\\nSamples, a division manager.\\n\\n BNSF issued a notice of investigation and conducted a\\nhearing regarding the second incident in January of 2013.\\nFollowing the hearing, Samples found that Frost did not know\\nthe details of his track authority and that he had violated\\nBNSF safety rules. Samples then concluded that Frost should\\nbe discharged due to the seriousness of the violation and the\\nfact that it occurred so soon after the first disciplinary\\nincident. It is undisputed that Frost would not have been\\ndischarged if the first incident had not occurred.\\n\\n Frost requested reinstatement. After an internal review,\\nBNSF decided to reinstate Frost, due to a concern that BNSF\\nwould not be able to justify the discipline imposed for the\\nApril 2012 incident if Frost challenged his dismissal before\\nan arbitrator. Frost was reinstated, with back pay, and BNSF\\nremoved the April 2012 disciplinary incident from his record.\\n\\n Nevertheless, Frost filed suit in September of 2015\\nalleging retaliation under the FRSA for Frost’s engagement\\nin protected activities—i.e., for reporting the PTSD injury\\nfollowing the first incident and for filing an OSHA complaint\\nalleging disciplinary retaliation shortly thereafter. Frost’s\\ncomplaint alleged that these protected activities were\\ncontributing factors to BNSF’s decision to terminate him, and\\n\\f FROST V. BNSF 7\\n\\nhe sought an award of emotional distress damages, punitive\\ndamages, and attorney’s fees.\\n\\n The matter was tried to a jury over four days. At trial,\\nRindy testified that he disciplined Frost because such\\ndiscipline was required by BNSF’s employee performance\\naccountability policy, and not because Frost had filed an\\ninjury report or engaged in any other protected activities.\\nAnd Samples testified that when he decided in 2013 that Frost\\nshould be discharged, he was not aware that Frost had filed an\\nOSHA complaint concerning the first incident. At the close\\nof the evidence, the trial court instructed the jury, over Frost’s\\nobjection, that:\\n\\n BNSF cannot be held liable under the Federal\\n Railroad Safety Act if you conclude that\\n defendant terminated plaintiff’s employment\\n based on its honestly held belief that plaintiff\\n engaged in the conduct for which he was\\n disciplined.\\n\\nThe jury returned a verdict in favor of BNSF.\\n\\n Frost moved for a new trial, arguing that the honest belief\\njury instruction was erroneous and that it substantially\\nprejudiced him. He also argued the he deserved a new trial\\nbecause BNSF improperly withheld evidence regarding a\\npotential retaliatory motive for terminating him—a\\n“scorecard” policy that rated each manager, in part, on the\\nnumber of injuries that occurred on his or her watch. The\\ntrial court acknowledged that BNSF appeared to “have hidden\\nthe ball” by not producing the scorecard policy in discovery,\\nbut it found no prejudice. The district court was also\\n\\f8 FROST V. BNSF\\n\\nunpersuaded by Frost’s challenge to the honest belief\\ninstruction. Frost appealed.2\\n\\n II.\\n\\n We review de novo whether a jury instruction properly\\nstates the elements that must be proved at trial. Chuman v.\\nWright, 76 F.3d 292, 294 (9th Cir. 1996). An instruction is\\nerroneous when, viewing the instructions as a whole, the\\n“substance of the applicable law was [not] fairly and correctly\\ncovered.” Miller v. Republic Nat’l Life Ins. Co., 789 F.2d\\n1336, 1339 (9th Cir. 1986) (alteration in original and citation\\nomitted). If there is an error, we presume that the error was\\nprejudicial and the non-moving party bears the burden of\\nestablishing that “it is more probable than not” that a properly\\ninstructed jury “would have reached the same verdict.”\\nGaldamez v. Potter, 415 F.3d 1015, 1025 (9th Cir. 2005)\\n(quoting Obrey v. Johnson, 400 F.3d 691, 701 (9th Cir.\\n2005)) (internal quotation marks omitted).\\n\\n III.\\n\\n We first examine the appropriate standards governing a\\nclaim of unlawful discrimination under the FRSA. As we\\nrecently explained in Rookaird v. BNSF Railway Co.,\\n908 F.3d 451 (9th Cir. 2018), the FRSA expressly invokes the\\n\\n\\n\\n\\n 2\\n Because we reverse the district court’s denial of Frost’s request for\\na new trial on the basis of the erroneous honest belief jury instruction, we\\ndo not address Frost’s claim that he is also entitled to a new trial because\\nBNSF withheld relevant and material documents in discovery.\\n\\f FROST V. BNSF 9\\n\\nAIR-213 framework set forth in 49 U.S.C. § 42121(b) for\\nclaims of unlawful discrimination. Id. at 459.4\\n\\n To establish a claim of unlawful discrimination under\\nthe FRSA, the plaintiff must prove by a preponderance of\\nthe evidence that his or her protected conduct “was a\\ncontributing factor in the unfavorable personnel action\\nalleged in the complaint.” Id. at 460 (citing 49 U.S.C.\\n§ 42121(b)(2)(B)(iii)). A contributing factor is “any factor,\\nwhich alone or in connection with other factors, tends to\\naffect in any way the outcome of the decision.” Rookaird,\\n908 F.3d at 461 (internal quotation marks omitted). If the\\nplaintiff succeeds, the employer can attempt to rebut the\\nallegations and defeat the claim by demonstrating “by clear\\nand convincing evidence that the employer would have taken\\nthe same unfavorable personnel action in the absence of [the\\nprotected activity].” 49 U.S.C. § 42121(b)(2)(B)(iv).\\n\\n Importantly, the only burden the statute places on FRSA\\nplaintiffs is to ultimately prove, by a preponderance of the\\nevidence, that their protected conduct was a contributing\\nfactor to the adverse employment action—i.e., that it\\n\\n\\n 3\\n “AIR-21” refers to the Wendell H. Ford Aviation Investment and\\nReform Act for the 21st Century, Pub. L. No. 106-181, 114 Stat. 61\\n(2000), which includes protections for whistleblowers and prohibits\\ndiscrimination against an air carrier employee who reports information\\nrelated to air carrier safety. Congress expressly adopted the same standard\\nfor the FRSA. 49 U.S.C. § 20109(d)(2).\\n 4\\n We are aware that under this framework there are two stages, a\\nprima facie stage and a substantive stage. We are here concerned\\nprimarily with the substantive stage, as this appeal causes us to consider\\nonly whether the honest belief instruction altered the substance of what\\nneeded to be proven at trial.\\n\\f10 FROST V. BNSF\\n\\n“tend[ed] to affect” the decision in some way. Id.\\n§ 42121(b)(2)(B); Rookaird, 908 F.3d at 461.\\n\\n BNSF argues that the FRSA is a “discrimination statute”\\nand that plaintiffs must therefore affirmatively prove that\\ntheir employers acted with discriminatory intent or animus in\\norder to bring claims for unlawful retaliation. We recognize\\nthat the FRSA, by its terms, describes and forbids intentional\\nretaliation, 49 U.S.C. § 20109(a), meaning that employers\\nmust act with impermissible intent or animus to violate the\\nstatute. What BNSF misses is that the only proof of\\ndiscriminatory intent that a plaintiff is required to show is that\\nhis or her protected activity was a “contributing factor” in the\\nresulting adverse employment action. Showing that an\\nemployer acted in retaliation for protected activity is the\\nrequired showing of intentional discrimination; there is no\\nrequirement that FRSA plaintiffs separately prove\\ndiscriminatory intent. 49 U.S.C. § 42121(b)(2)(B). Indeed,\\nin Tamosaitis v. URS Inc., 781 F.3d 468 (9th Cir. 2015), we\\nreviewed claims under the Energy Reorganization Act’s\\nwhistleblower retaliation protections that employ the same\\nstatutory framework as the FRSA. Id. at 480. We explained:\\n“Under this framework, the presence of an employer’s\\nsubjective retaliatory animus is irrelevant. All a plaintiff\\nmust show is that his ‘protected activity was a contributing\\nfactor in the adverse [employment] action.’” Id. at 482\\n(alterations in original) (quoting 29 C.F.R. § 24.104(f)(1)).\\nCoppinger-Martin v. Solis, 627 F.3d 745 (9th Cir. 2010) also\\ninvolved a retaliation claim arising in the context of a statute\\nwith the same “contributing factor” framework. There, we\\nexplained that to meet her burden at the prima facie stage a\\nplaintiff need not “conclusively demonstrate the employer’s\\nretaliatory motive.” Id. at 750 (emphasis added). Rather, the\\nemployer’s retaliatory motive was established by proving that\\n\\f FROST V. BNSF 11\\n\\nthe protected conduct was a contributing factor to the\\nemployer’s adverse action.\\n\\n More recently, in Rookaird, we quoted the Eighth\\nCircuit’s decision in Kuduk v. BNSF Railway Co., 768 F.3d\\n786 (8th Cir. 2014), and said that “‘the contributing factor\\nthat an employee must prove is intentional retaliation\\nprompted by the employee engaging in protected activity.’”\\nRookaird, 908 F.3d at 461–62 (quoting Kuduk, 768 F.3d at\\n791) (alteration omitted). BNSF cites this language from the\\nKuduk decision to argue that the FRSA requires proof of\\ndiscriminatory animus, separate from and beyond the\\nstatutorily required evidence that the plaintiff’s protected\\nconduct was a contributing factor in the adverse employment\\naction. But as Tamosaitis and Coppinger-Martin have\\nshown, we have already rejected that premise as inconsistent\\nwith the FRSA’s articulation of each party’s required\\nevidentiary burden. In fact, in Kuduk, the Eighth Circuit\\nrelied on our Coppinger-Martin decision and acknowledged\\nthat plaintiff need not provide “conclusive[]” proof of the\\nemployer’s animus to establish the plaintiff’s prima facie\\ncase. See Kuduk, 768 F.3d at 791. Rookaird’s citation to\\nKuduk does not imply, much less impose, an obligation to\\nprove retaliatory intent that is not included within the FRSA’s\\nclear and explicit statutory scheme. Instead, Rookaird simply\\nconfirms that although intent or animus is part of an FRSA\\nplaintiff’s case, showing that plaintiff’s protected conduct\\nwas a contributing factor is the required showing of intent or\\n“intentional retaliation[.]” Id. That is, by proving that an\\nemployee’s protected activity contributed in some way to the\\nemployer’s adverse conduct, the FRSA plaintiff has proven\\nthat the employer acted with some level of retaliatory intent.\\n\\f12 FROST V. BNSF\\n\\n Consistent with the language of 49 U.S.C.\\n§ 42121(b)(2)(B) and our prior decisions in Tamosaitis,\\nCoppinger-Martin, and Rookaird, we hold that although the\\nFRSA’s prohibition on “discriminat[ing] against an\\nemployee” ultimately requires a showing of the employer’s\\ndiscriminatory or retaliatory intent, FRSA plaintiffs satisfy\\nthat burden by proving that their protected activity was a\\ncontributing factor to the adverse employment decision.5\\nThere is no requirement, at either the prima facie stage or the\\nsubstantive stage, that a plaintiff make any additional\\nshowing of discriminatory intent.\\n\\n IV.\\n\\n A.\\n\\n Frost argues that the district court’s honest belief jury\\ninstruction misstated the applicable law. We agree.\\n\\n The district court instructed the jury that:\\n\\n BNSF cannot be held liable under the Federal\\n Railroad Safety Act if you conclude that\\n defendant terminated plaintiff’s employment\\n based on its honestly held belief that plaintiff\\n engaged in the conduct for which he was\\n disciplined.\\n\\n\\n 5\\n This holding is consistent with recent authority from the Third\\nCircuit, see Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152,\\n158 (3d Cir. 2013), but we recognize that it may conflict with authority\\nfrom the Seventh and Eighth Circuits. However, we are bound by our\\nprior caselaw as well as the explicit statutory language of 49 U.S.C.\\n§§ 20109(d) and 42121(b)(2)(B).\\n\\f FROST V. BNSF 13\\n\\n That instruction is not consistent with the FRSA’s\\nstatutory scheme. Frost needed to prove only that his\\nprotected conduct (filing an injury report and an OSHA\\ncomplaint) was a contributing factor to his ultimate\\ntermination. To rebut Frost’s case, BNSF had to prove that\\nthe same discipline would have been imposed with or without\\nthe injury report or the OSHA complaint. See 49 U.S.C.\\n§ 42121(b)(2)(B); Rookaird, 908 F.3d at 460. This\\nnecessarily means it was possible for Frost to show retaliation\\neven if BNSF had an honestly-held, justified belief that he\\nfouled the track. Frost was not required to show that his\\ninjury report was the only reason or that no other factors\\ninfluenced BNSF’s decision to terminate him. Nor does the\\ninstruction’s use of “based on” foreclose the possibility that\\nan impermissible factor or consideration contributed to the\\ndecision to discipline Frost. As Rookaird explained,\\n“contributing factors” may be quite modest—they include\\n“any factor” which “tends to affect in any way the outcome\\nof the decision.” Id. at 461 (internal quotation marks\\nomitted). Under the AIR-21 standard, Frost would be entitled\\nto relief even if his filing of an injury report played only a\\nvery small role in BNSF’s decision-making process.\\n\\n Instructing the jurors that they could find for BNSF by\\nlooking only at whether BNSF honestly believed that Frost\\nbroke a rule risked denying Frost a remedy to which he may\\nbe entitled under the statute, particularly because the evidence\\nhere appears to show relatively clearly that Frost fouled the\\ntrack. The instruction may have encouraged the jury to skirt\\nthe actual issue and improperly focus on whether discipline\\nwas justified for Frost’s safety violation instead of whether\\nhis protected conduct “tend[ed] to affect in any way” the\\ndecision to terminate him. Id. (internal quotation marks\\nomitted). The instruction may have short-circuited the jury’s\\n\\f14 FROST V. BNSF\\n\\ndeliberation by offering a path to finding for BNSF without\\nrequiring that it assess all of the relevant statutory burdens.\\n\\n BNSF argues that honest belief instructions have been\\napproved in FRSA cases, citing Armstrong v. BNSF Railway\\nCo., 880 F.3d 377 (7th Cir. 2018). In Armstrong, the jury\\nwas instructed that:\\n\\n Defendant cannot be held liable under the\\n FRSA if you conclude that Defendant\\n terminated Plaintiff’s employment based on\\n its honestly held belief that Plaintiff did not\\n engage in protected activity under the FRSA\\n in good faith.\\n\\nId. at 381 (emphasis added).\\n\\n Armstrong does not help BNSF because the primary\\ndispute in that case was about whether the plaintiff had\\nactually engaged in protected conduct in the first place, not\\nwhether the protected conduct was a contributing factor to the\\nplaintiff’s discipline. Id. at 382. Because there was evidence\\nin Armstrong that the employer may have honestly believed\\nthat the employee did not engage in protected activity,\\nArmstrong’s honest belief instruction was not improper. That\\nsaid, the only conclusion to be drawn from Armstrong is the\\nrecognition that it would not be possible to show that an\\nemployer retaliated in response to an employee engaging in\\nprotected activity if the employer could demonstrate that it\\nhonestly believed no protected activity had occurred.6\\n\\n\\n 6\\n Even under the circumstances in Armstrong, we note that the\\nSeventh Circuit only tepidly approved the instruction as not the “clearest\\npossible statement of the applicable law[.]” 880 F.3d at 382.\\n\\f FROST V. BNSF 15\\n\\n Because there was no dispute that Frost engaged in\\nprotected conduct, Armstrong is distinguishable and the\\ndistrict court’s use of the honest belief instruction was\\ntherefore legally erroneous.\\n\\n B.\\n\\n We next determine whether the erroneous honest belief\\ninstruction warrants a new trial.\\n\\n Frost provided evidence that other BNSF employees\\nfouled the track during the April 2012 incident, but that they\\ndid not file injury reports and were not disciplined. The\\njurors could construe this evidence of unpunished track-\\nfoulers as proof of disparate treatment and retaliatory\\nconduct—i.e., that Frost’s injury report was a contributory\\nfactor to his termination. However, the jurors also may have\\nfound that evidence not very credible or they may have\\ninstead believed the testimony of BNSF’s witnesses that\\nFrost’s injury report played no part in the decision to\\ndiscipline him. Though a properly instructed jury may have\\nreached a verdict for BNSF, we must presume prejudice\\nwhere an erroneous jury instruction is given. See Galdamez,\\n415 F.3d at 1025. The burden at this stage is thus on BNSF\\nto show it is more probable than not that the jury would have\\nreached the same verdict without the honest belief instruction.\\nId. BNSF does not satisfy that burden.\\n\\n BNSF’s counsel acknowledged during its argument\\nbefore our court that we simply do not know exactly how the\\njury evaluated the evidence in this case. The verdict form\\nwas relatively sparse, asking only two questions: (1) whether\\nFrost had met his prima facie case of showing his protected\\nactivity was a contributing factor; and (2) whether BNSF\\n\\f16 FROST V. BNSF\\n\\nsuccessfully rebutted Frost’s case by showing that it would\\nhave imposed the same disciplinary action with or without the\\nprotected conduct. The jury answered “no” to the first\\nquestion and did not answer the second.\\n\\n Because we do not know how the jurors applied the\\nhonest belief instruction, we cannot find that the presumption\\nof prejudice is rebutted. BNSF presented strong evidence\\n(video from the train) that Frost fouled the track. The jurors\\ntherefore may have felt it unnecessary to unravel any\\npotential factual tensions—e.g., the dispute between Frost’s\\nand BNSF’s witnesses about whether other laborers were\\nfouling the track at the same time Frost was—or they might\\nhave discounted questions about whether Frost’s injury report\\nplayed any role (even if only a small one) in BNSF’s decision\\nto discipline Frost. We also do not know whether the jurors\\nconcluded that Frost would have been terminated whether or\\nnot he filed an injury report because they did not reach that\\nquestion on the verdict form. We are therefore bound to\\npresume the improper instruction was prejudicial. See\\nGaldamez, 415 F.3d at 1025.\\n\\n We also cannot conclude that the presence of other,\\naccurate instructions eliminated the possibility that prejudice\\nresulted from the honest belief instruction, although we\\npresume that juries listen to and follow instructions, and we\\nhave previously found an erroneous jury instruction to be\\nharmless where the instructions as a whole were accurate.\\nSee, e.g., Sanderson v. Chapman, 487 F.2d 264, 267 (9th Cir.\\n1973). There is relatively clear evidence that Frost\\ncommitted two safety violations, and the honest belief\\ninstruction given here effectively allowed the jury to find for\\nBNSF on that basis alone. Because the erroneous instruction\\nprovided a shortcut that the jury may well have taken, the jury\\n\\f FROST V. BNSF 17\\n\\nmay not have decided whether Frost’s injury report was a\\nfactor that contributed to his termination or whether BNSF\\nwould have terminated him even if he had not reported an\\ninjury. Accordingly, the other jury instructions in this case do\\nnot rebut the presumption of prejudice.\\n\\n BNSF suggested during argument before our court that\\nlay jury members would have understood the instruction’s use\\nof “based on” to mean “solely or exclusively based on,” so the\\njury must have concluded that Frost’s injury report was not a\\nfactor (contributory or otherwise) to his termination. In our\\nview, that is not an obvious or intuitive conclusion. It is just\\nas likely that a lay juror would conclude that if a certain\\nfactor was the primary cause of a given consequence, the\\nconsequence was “based on” that factor, regardless of\\nwhatever other causative factors were shown at trial. More\\nimportantly, the record in this case does not permit much of\\nan inference either way, and in the absence of more precise\\nlanguage these (and perhaps other) interpretations of this\\ninstruction were left available to the jury. BNSF’s\\nspeculation about how the jury might have applied the\\nerroneous honest belief instruction therefore cannot rebut the\\npresumption of prejudice or effectively show it is more\\nprobable than not that jurors would have reached the same\\nverdict with or without the honest belief instruction.\\nGaldamez, 415 F.3d at 1025.\\n\\n V.\\n\\n The honest belief instruction was legally erroneous and\\nBNSF has failed to rebut the presumption that the improper\\n\\f18 FROST V. BNSF\\n\\ninstruction prejudiced Frost. Accordingly, we reverse the\\ndistrict court’s determination and remand for a new trial.\\n\\n REVERSED AND REMANDED.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":370,"cells":{"id":{"kind":"number","value":4586037,"string":"4,586,037"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Ezzard Ellis v. C. Harrison"},"decision_date":{"kind":"string","value":"2019-01-30"},"docket_number":{"kind":"string","value":"16-56188"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"\", \"parties\": \"\", \"opinions\": [{\"author\": \"THOMAS, Chief Judge\", \"type\": \"010combined\", \"text\": \"FOR PUBLICATION FILED\\n UNITED STATES COURT OF APPEALS JAN 30 2019\\n MOLLY C. DWYER, CLERK\\n U.S. COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\nEZZARD CHARLES ELLIS, No. 16-56188\\n\\n Petitioner-Appellant, D.C. No.\\n 5:05-cv-00520-SJO-JEM\\n v. Central District of California,\\n Riverside\\nC. M. HARRISON, Warden,\\n ORDER\\n Respondent-Appellee.\\n\\nTHOMAS, Chief Judge:\\n\\n Upon the vote of a majority of nonrecused active judges, it is ordered that\\n\\nthis case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a)\\n\\nand Circuit Rule 35-3. The three-judge panel disposition in this case shall not be\\n\\ncited as precedent by or to any court of the Ninth Circuit.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4363290/\"}]}"},"judge1":{"kind":"string","value":""},"judge2":{"kind":"string","value":""},"judge3":{"kind":"string","value":""},"exactly_three_caps":{"kind":"number","value":0,"string":"0"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4586037/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Ezzard Ellis v. C. Harrison\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-30\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION FILED\n UNITED STATES COURT OF APPEALS JAN 30 2019\n MOLLY C. DWYER, CLERK\n U.S. COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nEZZARD CHARLES ELLIS, No. 16-56188\n\n Petitioner-Appellant, D.C. No.\n 5:05-cv-00520-SJO-JEM\n v. Central District of California,\n Riverside\nC. M. HARRISON, Warden,\n ORDER\n Respondent-Appellee.\n\nTHOMAS, Chief Judge:\n\n Upon the vote of a majority of nonrecused active judges, it is ordered that\n\nthis case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a)\n\nand Circuit Rule 35-3. The three-judge panel disposition in this case shall not be\n\ncited as precedent by or to any court of the Ninth Circuit.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Ezzard Ellis v. C. Harrison\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-01-30\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION FILED\\n UNITED STATES COURT OF APPEALS JAN 30 2019\\n MOLLY C. DWYER, CLERK\\n U.S. COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\nEZZARD CHARLES ELLIS, No. 16-56188\\n\\n Petitioner-Appellant, D.C. No.\\n 5:05-cv-00520-SJO-JEM\\n v. Central District of California,\\n Riverside\\nC. M. HARRISON, Warden,\\n ORDER\\n Respondent-Appellee.\\n\\nTHOMAS, Chief Judge:\\n\\n Upon the vote of a majority of nonrecused active judges, it is ordered that\\n\\nthis case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a)\\n\\nand Circuit Rule 35-3. The three-judge panel disposition in this case shall not be\\n\\ncited as precedent by or to any court of the Ninth Circuit.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":371,"cells":{"id":{"kind":"number","value":9022984,"string":"9,022,984"},"name":{"kind":"string","value":"Ezzard Charles ELLIS v. C. M. HARRISON, Warden"},"name_abbreviation":{"kind":"string","value":"Ellis v. Harrison"},"decision_date":{"kind":"string","value":"2019-01-30"},"docket_number":{"kind":"string","value":"No. 16-56188"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Thomas\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9016221/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"THOMAS"},"judge2":{"kind":"string","value":"THOMAS"},"judge3":{"kind":"string","value":""},"exactly_three_caps":{"kind":"number","value":0,"string":"0"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/9022984/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Ezzard Charles ELLIS v. C. M. HARRISON, Warden\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-30\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Ezzard Charles ELLIS v. C. M. HARRISON, Warden\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-01-30\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":372,"cells":{"id":{"kind":"number","value":4586380,"string":"4,586,380"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Anthony Booth v. United States"},"decision_date":{"kind":"string","value":"2019-01-31"},"docket_number":{"kind":"string","value":"16-17084"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: Mary M. Schroeder and Marsha S. Berzon, * Circuit Judges, and Sara Lee Ellis, ** District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"ELLIS, District Judge:\", \"type\": \"010combined\", \"text\": \"FOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nANTHONY K. BOOTH, in his own No. 16-17084\\nright and on behalf of all statutory\\nbeneficiaries, D.C. No.\\n Plaintiff-Appellant, 2:11-cv-00901-\\n SPL\\n v.\\n\\nUNITED STATES OF AMERICA, OPINION\\n Defendant-Appellee.\\n\\n\\n\\n Appeal from the United States District Court\\n for the District of Arizona\\n Steven Paul Logan, District Judge, Presiding\\n\\n Argued and Submitted December 6, 2017\\n San Francisco, California\\n\\n Filed January 31, 2019\\n\\f2 BOOTH V. UNITED STATES\\n\\n Before: Mary M. Schroeder and Marsha S. Berzon, *\\n Circuit Judges, and Sara Lee Ellis, ** District Judge.\\n\\n Opinion by Judge Sara L. Ellis\\n\\n\\n SUMMARY ***\\n\\n\\n Federal Tort Claims Act\\n\\n The panel affirmed the district court’s summary\\njudgment in favor of the United States in a Federal Tort\\nClaims Act (“FTCA”) action alleging that a United States\\nagency negligently caused plaintiff’s father’s death while\\nplaintiff was a minor.\\n\\n The district court found that the claims were time-barred\\nbecause the minor’s representative submitted them too late.\\nThe minor argued on appeal that his minority should have\\noperated to toll the statute of limitations on his claims.\\n\\n The panel held that there is no minority tolling of the\\nFTCA’s statute of limitations. The panel further held that\\nthe Supreme Court’s decision in United States v. Wong, 135\\n\\n *\\n This case was submitted to a panel that included Judge Kozinski,\\nwho retired. Following Judge Kozinski’s retirement, Judge Berzon was\\ndrawn by lot to replace him. Ninth Circuit General Order 3.2.h. Judge\\nBerzon has read the briefs and reviewed the record.\\n\\n **\\n The Honorable Sara Lee Ellis, United States District Judge for the\\nNorthern District of Illinois, sitting by designation.\\n ***\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\f BOOTH V. UNITED STATES 3\\n\\nS. Ct. 1625 (2015), did not suggest, let alone hold, that\\nminority tolling applied to the FTCA. The panel also held\\nthat minority alone does not merit equitable tolling of the\\nFTCA’s statute of limitations. Accordingly, the panel\\naffirmed the district court’s judgment in favor of the\\ngovernment.\\n\\n\\n COUNSEL\\n\\nJohn P. Leader (argued), The Leader Law Firm, Tucson,\\nArizona, for Plaintiff-Appellant.\\n\\nAnn E. Harwood (argued), Assistant United States Attorney;\\nKrissa M. Lanham, Deputy Appellate Chief; Elizabeth A.\\nStrange, Acting United States Attorney; United States\\nAttorney’s Office, Phoenix, Arizona; for Defendant-\\nAppellee.\\n\\n\\n OPINION\\n\\nELLIS, District Judge:\\n\\n Plaintiff-Appellant Anthony K. Booth claims that a\\nUnited States agency negligently caused his father’s death\\nwhile Booth was a minor. Because Booth was a minor, his\\nmother, acting as his representative, sued the United States\\npursuant to the Federal Tort Claims Act (“FTCA”),\\n28 U.S.C. § 2671 et seq. The district court found that the\\nclaims were time-barred because Booth’s representative\\nsubmitted them too late. Booth appeals, arguing that\\nminority should operate to toll the statute of limitations on\\nhis claims. Because we conclude that prior decisions\\nholding that there is no minority tolling for the FTCA’s\\n\\f4 BOOTH V. UNITED STATES\\n\\nstatute of limitations remain binding, and conclude that\\nminority tolling is a separate statutory matter from equitable\\ntolling, we affirm the district court’s decision.\\n\\nI. Procedural and Factual Background\\n\\n Booth’s father, also named Anthony Booth, died in a car\\naccident on an Arizona highway on February 19, 2005. The\\nyounger Booth was weeks from his tenth birthday when he\\nlost his father.\\n\\n Booth’s mother, Marlene June, timely filed an\\nAdministrative Form 95 with the Federal Highway\\nAdministration (“FHWA”), and on May 5, 2011, filed suit\\nagainst the United States in federal court in Arizona, on\\nbehalf of Booth and other statutory beneficiaries (the late\\nAnthony Booth’s mother, daughters, and other son), alleging\\nthat a highway barrier that failed during the highway\\naccident was not tested and approved in accord with FHWA\\nrules. 1 Booth was fifteen years old when June filed the\\nadministrative claim and sixteen years old at the time she\\nfiled the lawsuit.\\n\\n The FTCA requires administrative exhaustion and sets\\ntime limits for both exhaustion and the filing of a lawsuit.\\n“An action shall not be instituted upon a claim against the\\nUnited States for money damages for injury or loss of\\nproperty or personal injury or death caused by the negligent\\nor wrongful act or omission of any employee of the\\nGovernment . . . unless the claimant shall have first\\npresented the claim to the appropriate Federal agency and\\n 1\\n Booth later substituted in as named plaintiff when he turned 18,\\nhence the title of this appeal. But for a good portion of the suit, June was\\nthe named plaintiff. We refer in this opinion to the appropriate named\\nplaintiff for the pertinent time period under discussion.\\n\\f BOOTH V. UNITED STATES 5\\n\\nhis claim shall have been finally denied by the agency in\\nwriting and sent by certified or registered mail.” 28 U.S.C.\\n§ 2675. “A tort claim against the United States shall be\\nforever barred unless it is presented in writing to the\\nappropriate Federal agency within two years after such claim\\naccrues . . . .” 28 U.S.C. § 2401(b). Such a tort claim is also\\nbarred “unless action is begun within six months after the\\ndate of mailing, by certified or registered mail, of notice of\\nfinal denial of the claim by the agency to which it was\\npresented.” Id. 2\\n\\n The Government moved to dismiss June’s case, arguing\\nthat the FTCA’s statute of limitations could not be tolled.\\nThe district court agreed, finding that the claim had accrued\\nmore than two years before June presented it to the federal\\nagency and holding that, under Ninth Circuit precedent, the\\nFTCA’s statute of limitations is not subject to equitable\\ntolling or tolling for minority of the injured party. June\\nappealed.\\n\\n While June’s appeal was pending, an en banc panel of\\nthis Court was considering Wong v. Beebe, 732 F.3d 1030\\n(9th Cir. 2013) (en banc). Wong also involved tolling of the\\nFTCA’s statute of limitations. The plaintiff-appellant in\\nWong sought equitable tolling of the FTCA’s statute of\\nlimitations for the time to file suit after bringing a claim to\\nthe administrative agency. Id. at 1034. We held that the\\nFTCA’s statute of limitations is not jurisdictional and is\\nsubject to equitable tolling. Id. at 1047, overruling Marley\\nv. United States, 567 F.3d 1030 (9th Cir. 2009).\\n\\n\\n\\n 2\\n We refer to the two-year and six-month statute of limitations\\ncollectively in this opinion as the FTCA’s statute of limitations.\\n\\f6 BOOTH V. UNITED STATES\\n\\n After Wong, the panel hearing June’s initial appeal\\nissued a memorandum disposition that reversed the district\\ncourt’s decision granting the Government’s motion to\\ndismiss June’s lawsuit and remanded the issue of equitable\\ntolling to the district court. June v. United States, 550 F.\\nApp’x 505 (9th Cir. 2013) (unpublished decision). The\\nGovernment then sought certiorari for both that decision and\\nWong.\\n\\n The Supreme Court took both cases, addressing and\\naffirming them both and ruling that the FTCA’s statute of\\nlimitations (both the two-year time limit after accrual for\\npresenting claims to the administrative agency and the six-\\nmonth time limit for suit after denial of a claim by an agency)\\nis not jurisdictional, but instead is subject to equitable\\ntolling. United States v. Wong (“Wong/June”), — U.S. —,\\n135 S. Ct. 1625, 191 L. Ed. 2d 533 (2015). The Supreme\\nCourt remanded June’s case.\\n\\n June’s case resumed in district court. Booth, having\\nreached the age of majority by this time, substituted in as\\nnamed plaintiff. The Government then moved for summary\\njudgment, arguing that Booth’s claim was barred by the\\nFTCA’s statute of limitations because June, as Booth’s\\nrepresentative, did not file a claim with the administrative\\nagency until more than five years after Booth’s father’s car\\naccident and there were no circumstances that called for\\nequitable tolling. Booth cross-moved for summary\\njudgment, arguing that the statute of limitations should be\\ntolled because the nature of the Government’s involvement\\nin the car accident had been concealed, and because Booth\\nhad been a minor at the time of the accident, at the time June\\nfiled an administrative claim, and at the time June filed suit.\\n\\n The district court granted the Government’s motion for\\nsummary judgment. The district court held, as it had\\n\\f BOOTH V. UNITED STATES 7\\n\\ndetermined before the appeal, that Booth’s claim accrued on\\nthe day of his father’s accident, February 19, 2005, and that\\nBooth had submitted his claim to the FHWA more than two\\nyears later, through his mother June, on December 16, 2010.\\nThe district court concluded that Booth could not equitably\\ntoll the statute of limitations on concealment grounds and\\nalso that Booth had waived any argument that his age tolled\\nthe statute of limitations, as he had failed to raise the issue in\\nthe prior appeal. Booth moved for reconsideration. The\\ndistrict court denied the motion, and Booth timely appealed.\\n\\nII. Standard of Review\\n\\n The Court reviews the district court’s grant of summary\\njudgment de novo. Estate of Lopez ex rel. Lopez v. Gelhaus,\\n871 F.3d 998, 1005 (9th Cir. 2017). We adopt the same\\nstandard used by the district court and “view the evidence in\\nthe light most favorable to the nonmoving party, determine\\nwhether there are any genuine issues of material fact, and\\ndecide whether the district court correctly applied the\\nrelevant substantive law.” Animal Legal Def. Fund v. U.S.\\nFood & Drug Admin., 836 F.3d 987, 989 (9th Cir. 2016).\\n\\nIII. Analysis\\n\\n On appeal, Booth asserts that his status as a minor during\\nmost of these proceedings tolls the FTCA’s statute of\\nlimitations—specifically that portion of the statute of\\nlimitations that requires a plaintiff to file a claim with the\\nresponsible agency within two years of the accrual of the\\n\\f8 BOOTH V. UNITED STATES\\n\\nclaim. 3 28 U.S.C. § 2401(b). No longer considered\\njurisdictional, the FTCA’s statute of limitations can now be\\ntolled, Wong, 732 F.3d at 1047, including for equitable\\nconsiderations, Wong/June, 135 S. Ct. at 1633 (“The time\\nlimits in the FTCA are just time limits, nothing more. Even\\nthough they govern litigation against the Government, a\\ncourt can toll them on equitable grounds.”). Booth argues\\nthat minority tolling—the rule applicable in many\\ncircumstances that statutes of limitations are tolled during\\nthe minority of the would-be plaintiff—should be applicable\\nunder the FTCA. He also maintains being a minor is\\nsufficient for equitable tolling of the FTCA’s statute of\\nlimitations.4\\n\\n\\n 3\\n Booth does not challenge on appeal the district court’s decision\\nthat the government’s alleged concealment does not justify equitable\\ntolling.\\n\\n In his briefing, Booth did not challenge the district court’s\\ndetermination that his claim accrued on the day of the accident. Because\\nhe raised the issue for the first time at argument, he has waived it. See\\nHarger v. Dep’t of Labor, 569 F.3d 898, 904 n.9 (9th Cir. 2009).\\n 4\\n We can dispose of two issues at the outset. The first is the\\nGovernment’s argument that the district court properly found that Booth\\nhad waived the issue of minority tolling. Wong and Wong/June changed\\nthe Ninth Circuit’s previous rule precluding any tolling of the FTCA\\nstatute of limitations, so Booth could not have waived the question of\\nhow that change affects minority tolling. See Gallardo v. United States,\\n755 F.3d 860, 865 (9th Cir. 2014) (equitable tolling issue not waived\\nwhen not raised before Wong). The second is Booth’s argument that\\nArizona’s minority tolling statute applies and tolls the FTCA’s statute of\\nlimitations. State rules on minority tolling do not apply. “A court must\\nlook to state law for the purpose of defining the actionable wrong for\\nwhich the United States shall be liable, but to federal law for the\\nlimitations of time within which the action must be brought.” Poindexter\\nv. United States, 647 F.2d 34, 36 (9th Cir. 1981); see also Santos ex rel.\\n\\f BOOTH V. UNITED STATES 9\\n\\n A. The Rule Against Minority Tolling of the FTCA’s\\n Statute of Limitations Should Continue to Apply\\n\\n Minority tolling statutes provide that if a cause of action\\naccrues when a plaintiff is a child, the statute of limitations\\non that cause of action is suspended until the plaintiff attains\\nthe age of majority. The policy reason underlying such\\nstatutes, as enunciated by one state appellate court in this\\nCircuit, is “[b]ecause a minor does not have the\\nunderstanding or experience of an adult, and because a minor\\nmay not bring an action except through a guardian . . .\\nspecial safeguards are required to protect the minor’s right\\nof action.” W. Shield Investigations & Sec. Consultants v.\\nSuperior Court, 82 Cal. App. 4th 935, 947 (Ct. App. 2000)\\n(quoting L.C. Amie v. Superior Court, 99 Cal. App. 3d 421,\\n426 (Ct. App. 1979)), disapproved of on other grounds by\\nGatto v. County of Sonoma, 98 Cal. App. 4th 744 (Ct. App.\\n2002). The states in this Circuit all have statutes providing\\nfor minority tolling for state-law tort claims. See Alaska\\nStat. § 09.10.140(a); Ariz. Rev. Stat. Ann. § 12-502; Cal.\\nCiv. Proc. Code § 352(a); Haw. Rev. Stat. § 657-13; Idaho\\nCode § 5-230; Mont. Code Ann. § 27-2-401(1); Nev. Rev.\\nStat. § 11.250; Or. Rev. Stat. § 12.160(1)–(2); Wash. Rev.\\nCode § 4.16.190(1).\\n\\n As the Fourth Circuit has recognized, “[t]he blackletter\\nrule . . . is that a statute of limitations runs against all\\npersons, even those under a disability, unless the statute\\nexpressly provides otherwise.” Vogel v. Linde, 23 F.3d 78,\\n80 (4th Cir. 1994). The Supreme Court long ago recognized\\nthis rule as extending to minority tolling: “The exemptions\\nfrom the operation of statutes of limitations, usually\\n\\nBaeato v. United States, 559 F.3d 189, 193 (3d Cir. 2009) (“[S]tate-law\\ntolling statutes do not apply to the FTCA’s limitations period.”).\\n\\f10 BOOTH V. UNITED STATES\\n\\naccorded to infants . . . , do not rest upon any general\\ndoctrine of the law . . . but in every instance upon express\\nlanguage in those statutes giving them time, after majority\\n. . . to assert their rights.” Vance v. Vance, 108 U.S. 514,\\n521, 2 S. Ct. 854, 27 L. Ed. 808 (1883); see also United\\nStates v. Alvarez, 710 F.3d 565, 568 n.10 (5th Cir. 2013)\\n(“The federal courts have consistently rejected requests to\\ncreate tolling exceptions for minors, reasoning that in the\\nabsence of an express legislative directive to the contrary,\\nparents and guardians are assumed to be adequate\\nsurrogates.”). Federal courts have consistently applied\\nVance, following minority tolling for federal statutes of\\nlimitations only if the statute setting out the limitations\\nperiod so specifies. 5 See, e.g., Alvarez, 710 F.3d at 567;\\nVogel, 23 F.3d at 80.\\n\\n Consistent with the Vance principle, we have never\\nrecognized minority tolling for the FTCA’s statute of\\nlimitations. See Papa v. United States, 281 F.3d 1004, 1001\\n(9th Cir. 2002) (“The time limitation for FTCA claims is not\\ntolled during a claimant’s minority.”); Landreth ex rel. Ore\\nv. United States, 850 F.2d 532, 534 (9th Cir. 1988) (“The\\nfact of minority does not toll the statute.”); Fernandez v.\\nUnited States, 673 F.2d 269, 271 (9th Cir. 1982) (noting that\\nno minority tolling applies under the FTCA); Mann v. United\\n\\n 5\\n Minority tolling may be available for federal causes of action that\\nborrow the statute of limitations from state law such as § 1983, but only\\nif the relevant state law also includes a minority tolling provision and\\nthat provision is not “inconsistent with the federal policy underlying the\\ncause of action under consideration.” Bd. of Regents of Univ. of N.Y. v.\\nTomanio, 446 U.S. 478, 485, 100 S. Ct. 1790, 64 L.Ed.2d 440 (1980);\\nsee also Bishop v. Children’s Ctr. for Developmental Enrichment,\\n618 F.3d 533, 538 (6th Cir. 2010). As already noted, state tolling\\nprovisions do not apply to the FTCA’s limitations period. See\\nPoindexter v. United States, 647 F.2d at 36.\\n\\f BOOTH V. UNITED STATES 11\\n\\nStates, 399 F.2d 672, 673 (9th Cir. 1968) (“The [FTCA] time\\nlimitation is not tolled during a claimant’s minority.”);\\nBrown v. United States, 353 F.2d 578, 579 (9th Cir. 1965)\\n(“It is well established that minority does not toll the\\nlimitations period prescribed in the Federal Tort Claims\\nAct.”); Pittman v. United States, 341 F.2d 739, 740 (9th Cir.\\n1965) (refusing to toll the FTCA’s statute of limitations for\\na minor); United States v. Glenn, 231 F.2d 884, 887 (9th Cir.\\n1956) (same).\\n\\n Congress, if so minded, may establish exceptions for\\ncertain disabilities—including minority—and has done so in\\nvarious federal statutes. See, e.g., 18 U.S.C. § 2255(b)(2);\\n28 U.S.C. § 2501. By contrast, the FTCA began with a\\nstatute of limitations that was “without express qualification\\nfor legal disability,” and each time Congress amended the\\nlimitation period, it did not add a tolling provision. Glenn,\\n231 F.2d at 886; see also 28 U.S.C. § 2401(b). Indeed,\\nCongress considered proposed amendments providing for\\nminority tolling of the FTCA’s statute of limitations. E.g.,\\nH.R. 3260, 3261, 101st Cong. (1989). But these proposed\\namendments have not become law. Had Congress wanted to\\ninclude minority tolling in the FTCA’s statute of limitations,\\nit could have done so.\\n\\n Booth asks that we ignore the prior FTCA case law\\nrejecting minority tolling here, arguing that Wong/June\\nrequires that we abandon sixty years of precedent.\\nWong/June says nothing to indicate that our past decisions\\non this discrete issue are incorrect. The Supreme Court was\\nsilent on minority tolling. And we have grounded our rule\\nagainst minority tolling in part on considerations\\nindependent of whether the FTCA’s statute of limitations is\\njurisdictional. Our case law emphasizes that Congress does\\nnot appear to have intended to expand that waiver of\\n\\f12 BOOTH V. UNITED STATES\\n\\nimmunity for the entire time an injured party is a minor. See\\nPittman, 341 F.2d at 741 (“We do not believe that the\\nCongress could have intended that infants have up to\\n21 years for a statute of limitations.”). Under these cases,\\nthe parent or guardian holds a legal duty to take action on\\nbehalf of the minor child. Landreth, 850 F.2d at 534. The\\nparent’s knowledge of the injury and its cause is imputed to\\nthe minor, leaving the parent responsible for initiation of suit\\nin a timely manner. Id. These considerations have no\\nrelation to whether the statute of limitations is\\njurisdictional. 6 In short, the Supreme Court’s decision in\\nWong/June does not suggest, let alone hold, that minority\\ntolling applies to the FTCA.\\n\\n As Booth recognizes, the statute of limitations for non-\\ntort claims brought against the United States, which is also\\nfound under § 2401, does contain a tolling provision. See\\n28 U.S.C. § 2401(a) (“Except as provided by chapter 71 of\\ntitle 41, every civil action commenced against the United\\nStates shall be barred unless the complaint is filed within six\\nyears after the right of action first accrues. The action of any\\nperson under legal disability or beyond the seas at the time\\nthe claim accrues may be commenced within three years\\nafter the disability ceases.”). Although, on its face, the\\nsecond sentence of subsection (a) is generic, we held in\\nGlenn that it is not. See 231 F.2d at 886. Glenn noted that,\\nalthough both § 2401(a) and § 2401(b) are now contained in\\nthe same statute, they did not begin that way. See id. Based\\n\\n 6\\n Our sister circuits would appear to agree. The Third and Eight\\nCircuits recognized before Wong/June that the FTCA’s statute of\\nlimitations was not jurisdictional. See Santos, 559 F.3d at 197; Schmidt\\nv. United States, 933 F.2d 639, 640 (8th Cir. 1991). At the same time,\\nthese circuits held that minority tolling of the FTCA’s statute of\\nlimitations was not available. Santos, 559 F.3d at 197; Wilson ex rel.\\nWilson v. Gunn, 403 F.3d 524, 526 (8th Cir. 2005).\\n\\f BOOTH V. UNITED STATES 13\\n\\non the legislative history of § 2401 and the sources of\\nsubsections (a) and (b), Glenn concluded that Congress did\\nnot intend “that the sentence in [§ 2401(a)] qualified the\\nlimitation on tort claims set forth in [§ 2401(b)].” Id.\\n\\n Booth asks us to overrule Glenn. Putting aside that\\nBooth raised this argument for the first time at oral\\nargument, thus waiving it, we may not overrule Glenn, as\\nthere is no Supreme Court or en banc case inconsistent with\\nit. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003)\\n(en banc).\\n\\n Moreover, applying subsection (a)’s tolling provision to\\nclaims covered by subsection (b) would create an anomaly.\\nUnder that interpretation, a formerly disabled plaintiff would\\nhave three years to file an action after the disability ceases,\\nnotwithstanding subsection (b)’s requirement that such\\nclaims be filed with the agency within two years after the\\nclaim accrues. Compare 28 U.S.C. § 2401(a) (“The action of\\nany person under legal disability or beyond the seas at the\\ntime the claim accrues may be commenced within three\\nyears after the disability ceases.” (emphasis added)), with id.\\n§ 2401(b) (“A tort claim against the United States shall be\\nforever barred unless it is presented in writing to the\\nappropriate Federal agency within two years after such claim\\naccrues . . . .” (emphasis added)). We can think of no reason\\nCongress would have devised such a scheme.\\n\\n We therefore reject Booth’s argument that the tolling\\nprovision in subsection (a) should apply to claims covered\\nby subsection (b).\\n\\f14 BOOTH V. UNITED STATES\\n\\n B. Tolling for Minority Status Alone Is a Statutory\\n Matter Separate from Equitable Tolling\\n\\n Separate and distinct from the statutory concept of\\nminority tolling is equitable tolling. “[A] court may pause\\nthe running of a limitations statute . . . when a party ‘has\\npursued his rights diligently but some extraordinary\\ncircumstance’ prevents him from meeting a deadline.”\\nWong/June, 135 S. Ct. at 1631 (quoting Lozano v. Montoya\\nAlvarez, — U.S. —, 134 S. Ct. 1224, 1231–32, 188 L. Ed.\\n2d 200 (2014)). This is the concept of equitable tolling. “In\\napplying equitable tolling, courts ‘follow a tradition in which\\ncourts of equity have sought to relieve hardships which, from\\ntime to time, arise from a hard and fast adherence to more\\nabsolute legal rules, which, if strictly applied, threaten the\\nevils of archaic rigidity.” Wong, 732 F.3d at 1052 (quoting\\nHolland v. Florida, 560 U.S. 631, 650, 130 S. Ct. 2563, 177\\nL. Ed. 2d 130 (2010)).\\n\\n To obtain equitable tolling a litigant must establish\\n“(1) that he has been pursuing his rights diligently, and\\n(2) that some extraordinary circumstances stood in his way.”\\nId. (citation omitted). The first element requires “the effort\\nthat a reasonable person might be expected to deliver under\\nhis or her particular circumstances,” id. (quoting Doe v.\\nBusby, 661 F.3d 1001, 1015 (9th Cir. 2011)), and asks\\nwhether the plaintiff was “‘without any fault’ in pursuing his\\nclaim,” id. (quoting FEC v. Williams, 104 F.3d 237, 240 (9th\\nCir. 1996)). The second element requires the litigant to\\n“show that extraordinary circumstances were the cause of his\\nuntimeliness and . . . made it impossible to file the document\\non time.” Id. (quoting Ramirez v. Yates, 571 F.3d 993, 997\\n(9th Cir. 2009)). “Whether a particular untimely claim may\\nbe excused for a particular reason varies with the reason.”\\nId. at 1051.\\n\\f BOOTH V. UNITED STATES 15\\n\\n As noted above, suspending a limitations period during\\nminority has been available not as a result of equitable\\ntolling but only where a statute expressly so provides. See\\nVance, 108 U.S. at 521. Particular circumstances connected\\nto one’s age could support equitable tolling. For example,\\nthere may be cause for equitable tolling if a minor is\\nabandoned by his parents and/or guardians and so left\\nunprotected. Cf. Zavala ex rel. Ruiz v. United States,\\n876 F.2d 780, 784 (9th Cir. 1989) (“He does not persuade us\\nthat the alleged abandonment left him unprotected . . . .”).\\nLikewise, some states have recognized that equitable tolling\\nmay be appropriate where a minor is “a ward of the state\\nwithout a next friend or guardian of his estate” or “has a\\nguardian of his person with interests possibly adverse to his\\nown,” Caron v. Adams, 638 A.2d 1073, 1079 (Conn. App.\\nCt. 1994), or where the cause of action is not reasonably\\nknowable by the plaintiff or her parents because of her\\nminority, see Wimberly v. Gatch, 635 So. 2d 206, 217 (La.\\n1994).\\n\\n Still, minority alone is not the type of exceptional\\ncircumstance described above. In multiple cases involving\\nminors with FTCA claims, this Court has considered\\nwhether minority tolling applies (and held that it does not),\\nand then separately considered whether equitable tolling\\napplies and concluded that there was not a sufficient basis\\nfor equitable tolling. See Papa, 281 F.3d at 1011; Zavala,\\n876 F.2d at 784. In so ruling in Zavala, this Court noted that\\nthe minor had “a parent who had both the duty to bring a\\nclaim and the knowledge necessary to pursue it.” 876 F.2d\\nat 784. Booth has shown no evidence to indicate that this\\nwas not the case here as well, or to indicate any extraordinary\\ncircumstances outside of the mere fact of his minority.\\n\\f16 BOOTH V. UNITED STATES\\n\\n Accordingly, we hold that there is no minority tolling of\\nthe FTCA’s statute of limitations and that minority alone\\ndoes not merit equitable tolling of the FTCA’s statute of\\nlimitations. The district court’s grant of summary judgment\\nto the United States is AFFIRMED.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4363633/\", \"author_raw\": \"ELLIS, District Judge:\"}]}"},"judge1":{"kind":"string","value":"MARY M SCHROEDER"},"judge2":{"kind":"string","value":"MARSHA S BERZON"},"judge3":{"kind":"string","value":"SARA LEE ELLIS"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4586380/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Anthony Booth v. United States\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-31\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nANTHONY K. BOOTH, in his own No. 16-17084\nright and on behalf of all statutory\nbeneficiaries, D.C. No.\n Plaintiff-Appellant, 2:11-cv-00901-\n SPL\n v.\n\nUNITED STATES OF AMERICA, OPINION\n Defendant-Appellee.\n\n\n\n Appeal from the United States District Court\n for the District of Arizona\n Steven Paul Logan, District Judge, Presiding\n\n Argued and Submitted December 6, 2017\n San Francisco, California\n\n Filed January 31, 2019\n\f2 BOOTH V. UNITED STATES\n\n Before: Mary M. Schroeder and Marsha S. Berzon, *\n Circuit Judges, and Sara Lee Ellis, ** District Judge.\n\n Opinion by Judge Sara L. Ellis\n\n\n SUMMARY ***\n\n\n Federal Tort Claims Act\n\n The panel affirmed the district court’s summary\njudgment in favor of the United States in a Federal Tort\nClaims Act (“FTCA”) action alleging that a United States\nagency negligently caused plaintiff’s father’s death while\nplaintiff was a minor.\n\n The district court found that the claims were time-barred\nbecause the minor’s representative submitted them too late.\nThe minor argued on appeal that his minority should have\noperated to toll the statute of limitations on his claims.\n\n The panel held that there is no minority tolling of the\nFTCA’s statute of limitations. The panel further held that\nthe Supreme Court’s decision in United States v. Wong, 135\n\n *\n This case was submitted to a panel that included Judge Kozinski,\nwho retired. Following Judge Kozinski’s retirement, Judge Berzon was\ndrawn by lot to replace him. Ninth Circuit General Order 3.2.h. Judge\nBerzon has read the briefs and reviewed the record.\n\n **\n The Honorable Sara Lee Ellis, United States District Judge for the\nNorthern District of Illinois, sitting by designation.\n ***\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f BOOTH V. UNITED STATES 3\n\nS. Ct. 1625 (2015), did not suggest, let alone hold, that\nminority tolling applied to the FTCA. The panel also held\nthat minority alone does not merit equitable tolling of the\nFTCA’s statute of limitations. Accordingly, the panel\naffirmed the district court’s judgment in favor of the\ngovernment.\n\n\n COUNSEL\n\nJohn P. Leader (argued), The Leader Law Firm, Tucson,\nArizona, for Plaintiff-Appellant.\n\nAnn E. Harwood (argued), Assistant United States Attorney;\nKrissa M. Lanham, Deputy Appellate Chief; Elizabeth A.\nStrange, Acting United States Attorney; United States\nAttorney’s Office, Phoenix, Arizona; for Defendant-\nAppellee.\n\n\n OPINION\n\nELLIS, District Judge:\n\n Plaintiff-Appellant Anthony K. Booth claims that a\nUnited States agency negligently caused his father’s death\nwhile Booth was a minor. Because Booth was a minor, his\nmother, acting as his representative, sued the United States\npursuant to the Federal Tort Claims Act (“FTCA”),\n28 U.S.C. § 2671 et seq. The district court found that the\nclaims were time-barred because Booth’s representative\nsubmitted them too late. Booth appeals, arguing that\nminority should operate to toll the statute of limitations on\nhis claims. Because we conclude that prior decisions\nholding that there is no minority tolling for the FTCA’s\n\f4 BOOTH V. UNITED STATES\n\nstatute of limitations remain binding, and conclude that\nminority tolling is a separate statutory matter from equitable\ntolling, we affirm the district court’s decision.\n\nI. Procedural and Factual Background\n\n Booth’s father, also named Anthony Booth, died in a car\naccident on an Arizona highway on February 19, 2005. The\nyounger Booth was weeks from his tenth birthday when he\nlost his father.\n\n Booth’s mother, Marlene June, timely filed an\nAdministrative Form 95 with the Federal Highway\nAdministration (“FHWA”), and on May 5, 2011, filed suit\nagainst the United States in federal court in Arizona, on\nbehalf of Booth and other statutory beneficiaries (the late\nAnthony Booth’s mother, daughters, and other son), alleging\nthat a highway barrier that failed during the highway\naccident was not tested and approved in accord with FHWA\nrules. 1 Booth was fifteen years old when June filed the\nadministrative claim and sixteen years old at the time she\nfiled the lawsuit.\n\n The FTCA requires administrative exhaustion and sets\ntime limits for both exhaustion and the filing of a lawsuit.\n“An action shall not be instituted upon a claim against the\nUnited States for money damages for injury or loss of\nproperty or personal injury or death caused by the negligent\nor wrongful act or omission of any employee of the\nGovernment . . . unless the claimant shall have first\npresented the claim to the appropriate Federal agency and\n 1\n Booth later substituted in as named plaintiff when he turned 18,\nhence the title of this appeal. But for a good portion of the suit, June was\nthe named plaintiff. We refer in this opinion to the appropriate named\nplaintiff for the pertinent time period under discussion.\n\f BOOTH V. UNITED STATES 5\n\nhis claim shall have been finally denied by the agency in\nwriting and sent by certified or registered mail.” 28 U.S.C.\n§ 2675. “A tort claim against the United States shall be\nforever barred unless it is presented in writing to the\nappropriate Federal agency within two years after such claim\naccrues . . . .” 28 U.S.C. § 2401(b). Such a tort claim is also\nbarred “unless action is begun within six months after the\ndate of mailing, by certified or registered mail, of notice of\nfinal denial of the claim by the agency to which it was\npresented.” Id. 2\n\n The Government moved to dismiss June’s case, arguing\nthat the FTCA’s statute of limitations could not be tolled.\nThe district court agreed, finding that the claim had accrued\nmore than two years before June presented it to the federal\nagency and holding that, under Ninth Circuit precedent, the\nFTCA’s statute of limitations is not subject to equitable\ntolling or tolling for minority of the injured party. June\nappealed.\n\n While June’s appeal was pending, an en banc panel of\nthis Court was considering Wong v. Beebe, 732 F.3d 1030\n(9th Cir. 2013) (en banc). Wong also involved tolling of the\nFTCA’s statute of limitations. The plaintiff-appellant in\nWong sought equitable tolling of the FTCA’s statute of\nlimitations for the time to file suit after bringing a claim to\nthe administrative agency. Id. at 1034. We held that the\nFTCA’s statute of limitations is not jurisdictional and is\nsubject to equitable tolling. Id. at 1047, overruling Marley\nv. United States, 567 F.3d 1030 (9th Cir. 2009).\n\n\n\n 2\n We refer to the two-year and six-month statute of limitations\ncollectively in this opinion as the FTCA’s statute of limitations.\n\f6 BOOTH V. UNITED STATES\n\n After Wong, the panel hearing June’s initial appeal\nissued a memorandum disposition that reversed the district\ncourt’s decision granting the Government’s motion to\ndismiss June’s lawsuit and remanded the issue of equitable\ntolling to the district court. June v. United States, 550 F.\nApp’x 505 (9th Cir. 2013) (unpublished decision). The\nGovernment then sought certiorari for both that decision and\nWong.\n\n The Supreme Court took both cases, addressing and\naffirming them both and ruling that the FTCA’s statute of\nlimitations (both the two-year time limit after accrual for\npresenting claims to the administrative agency and the six-\nmonth time limit for suit after denial of a claim by an agency)\nis not jurisdictional, but instead is subject to equitable\ntolling. United States v. Wong (“Wong/June”), — U.S. —,\n135 S. Ct. 1625, 191 L. Ed. 2d 533 (2015). The Supreme\nCourt remanded June’s case.\n\n June’s case resumed in district court. Booth, having\nreached the age of majority by this time, substituted in as\nnamed plaintiff. The Government then moved for summary\njudgment, arguing that Booth’s claim was barred by the\nFTCA’s statute of limitations because June, as Booth’s\nrepresentative, did not file a claim with the administrative\nagency until more than five years after Booth’s father’s car\naccident and there were no circumstances that called for\nequitable tolling. Booth cross-moved for summary\njudgment, arguing that the statute of limitations should be\ntolled because the nature of the Government’s involvement\nin the car accident had been concealed, and because Booth\nhad been a minor at the time of the accident, at the time June\nfiled an administrative claim, and at the time June filed suit.\n\n The district court granted the Government’s motion for\nsummary judgment. The district court held, as it had\n\f BOOTH V. UNITED STATES 7\n\ndetermined before the appeal, that Booth’s claim accrued on\nthe day of his father’s accident, February 19, 2005, and that\nBooth had submitted his claim to the FHWA more than two\nyears later, through his mother June, on December 16, 2010.\nThe district court concluded that Booth could not equitably\ntoll the statute of limitations on concealment grounds and\nalso that Booth had waived any argument that his age tolled\nthe statute of limitations, as he had failed to raise the issue in\nthe prior appeal. Booth moved for reconsideration. The\ndistrict court denied the motion, and Booth timely appealed.\n\nII. Standard of Review\n\n The Court reviews the district court’s grant of summary\njudgment de novo. Estate of Lopez ex rel. Lopez v. Gelhaus,\n871 F.3d 998, 1005 (9th Cir. 2017). We adopt the same\nstandard used by the district court and “view the evidence in\nthe light most favorable to the nonmoving party, determine\nwhether there are any genuine issues of material fact, and\ndecide whether the district court correctly applied the\nrelevant substantive law.” Animal Legal Def. Fund v. U.S.\nFood & Drug Admin., 836 F.3d 987, 989 (9th Cir. 2016).\n\nIII. Analysis\n\n On appeal, Booth asserts that his status as a minor during\nmost of these proceedings tolls the FTCA’s statute of\nlimitations—specifically that portion of the statute of\nlimitations that requires a plaintiff to file a claim with the\nresponsible agency within two years of the accrual of the\n\f8 BOOTH V. UNITED STATES\n\nclaim. 3 28 U.S.C. § 2401(b). No longer considered\njurisdictional, the FTCA’s statute of limitations can now be\ntolled, Wong, 732 F.3d at 1047, including for equitable\nconsiderations, Wong/June, 135 S. Ct. at 1633 (“The time\nlimits in the FTCA are just time limits, nothing more. Even\nthough they govern litigation against the Government, a\ncourt can toll them on equitable grounds.”). Booth argues\nthat minority tolling—the rule applicable in many\ncircumstances that statutes of limitations are tolled during\nthe minority of the would-be plaintiff—should be applicable\nunder the FTCA. He also maintains being a minor is\nsufficient for equitable tolling of the FTCA’s statute of\nlimitations.4\n\n\n 3\n Booth does not challenge on appeal the district court’s decision\nthat the government’s alleged concealment does not justify equitable\ntolling.\n\n In his briefing, Booth did not challenge the district court’s\ndetermination that his claim accrued on the day of the accident. Because\nhe raised the issue for the first time at argument, he has waived it. See\nHarger v. Dep’t of Labor, 569 F.3d 898, 904 n.9 (9th Cir. 2009).\n 4\n We can dispose of two issues at the outset. The first is the\nGovernment’s argument that the district court properly found that Booth\nhad waived the issue of minority tolling. Wong and Wong/June changed\nthe Ninth Circuit’s previous rule precluding any tolling of the FTCA\nstatute of limitations, so Booth could not have waived the question of\nhow that change affects minority tolling. See Gallardo v. United States,\n755 F.3d 860, 865 (9th Cir. 2014) (equitable tolling issue not waived\nwhen not raised before Wong). The second is Booth’s argument that\nArizona’s minority tolling statute applies and tolls the FTCA’s statute of\nlimitations. State rules on minority tolling do not apply. “A court must\nlook to state law for the purpose of defining the actionable wrong for\nwhich the United States shall be liable, but to federal law for the\nlimitations of time within which the action must be brought.” Poindexter\nv. United States, 647 F.2d 34, 36 (9th Cir. 1981); see also Santos ex rel.\n\f BOOTH V. UNITED STATES 9\n\n A. The Rule Against Minority Tolling of the FTCA’s\n Statute of Limitations Should Continue to Apply\n\n Minority tolling statutes provide that if a cause of action\naccrues when a plaintiff is a child, the statute of limitations\non that cause of action is suspended until the plaintiff attains\nthe age of majority. The policy reason underlying such\nstatutes, as enunciated by one state appellate court in this\nCircuit, is “[b]ecause a minor does not have the\nunderstanding or experience of an adult, and because a minor\nmay not bring an action except through a guardian . . .\nspecial safeguards are required to protect the minor’s right\nof action.” W. Shield Investigations & Sec. Consultants v.\nSuperior Court, 82 Cal. App. 4th 935, 947 (Ct. App. 2000)\n(quoting L.C. Amie v. Superior Court, 99 Cal. App. 3d 421,\n426 (Ct. App. 1979)), disapproved of on other grounds by\nGatto v. County of Sonoma, 98 Cal. App. 4th 744 (Ct. App.\n2002). The states in this Circuit all have statutes providing\nfor minority tolling for state-law tort claims. See Alaska\nStat. § 09.10.140(a); Ariz. Rev. Stat. Ann. § 12-502; Cal.\nCiv. Proc. Code § 352(a); Haw. Rev. Stat. § 657-13; Idaho\nCode § 5-230; Mont. Code Ann. § 27-2-401(1); Nev. Rev.\nStat. § 11.250; Or. Rev. Stat. § 12.160(1)–(2); Wash. Rev.\nCode § 4.16.190(1).\n\n As the Fourth Circuit has recognized, “[t]he blackletter\nrule . . . is that a statute of limitations runs against all\npersons, even those under a disability, unless the statute\nexpressly provides otherwise.” Vogel v. Linde, 23 F.3d 78,\n80 (4th Cir. 1994). The Supreme Court long ago recognized\nthis rule as extending to minority tolling: “The exemptions\nfrom the operation of statutes of limitations, usually\n\nBaeato v. United States, 559 F.3d 189, 193 (3d Cir. 2009) (“[S]tate-law\ntolling statutes do not apply to the FTCA’s limitations period.”).\n\f10 BOOTH V. UNITED STATES\n\naccorded to infants . . . , do not rest upon any general\ndoctrine of the law . . . but in every instance upon express\nlanguage in those statutes giving them time, after majority\n. . . to assert their rights.” Vance v. Vance, 108 U.S. 514,\n521, 2 S. Ct. 854, 27 L. Ed. 808 (1883); see also United\nStates v. Alvarez, 710 F.3d 565, 568 n.10 (5th Cir. 2013)\n(“The federal courts have consistently rejected requests to\ncreate tolling exceptions for minors, reasoning that in the\nabsence of an express legislative directive to the contrary,\nparents and guardians are assumed to be adequate\nsurrogates.”). Federal courts have consistently applied\nVance, following minority tolling for federal statutes of\nlimitations only if the statute setting out the limitations\nperiod so specifies. 5 See, e.g., Alvarez, 710 F.3d at 567;\nVogel, 23 F.3d at 80.\n\n Consistent with the Vance principle, we have never\nrecognized minority tolling for the FTCA’s statute of\nlimitations. See Papa v. United States, 281 F.3d 1004, 1001\n(9th Cir. 2002) (“The time limitation for FTCA claims is not\ntolled during a claimant’s minority.”); Landreth ex rel. Ore\nv. United States, 850 F.2d 532, 534 (9th Cir. 1988) (“The\nfact of minority does not toll the statute.”); Fernandez v.\nUnited States, 673 F.2d 269, 271 (9th Cir. 1982) (noting that\nno minority tolling applies under the FTCA); Mann v. United\n\n 5\n Minority tolling may be available for federal causes of action that\nborrow the statute of limitations from state law such as § 1983, but only\nif the relevant state law also includes a minority tolling provision and\nthat provision is not “inconsistent with the federal policy underlying the\ncause of action under consideration.” Bd. of Regents of Univ. of N.Y. v.\nTomanio, 446 U.S. 478, 485, 100 S. Ct. 1790, 64 L.Ed.2d 440 (1980);\nsee also Bishop v. Children’s Ctr. for Developmental Enrichment,\n618 F.3d 533, 538 (6th Cir. 2010). As already noted, state tolling\nprovisions do not apply to the FTCA’s limitations period. See\nPoindexter v. United States, 647 F.2d at 36.\n\f BOOTH V. UNITED STATES 11\n\nStates, 399 F.2d 672, 673 (9th Cir. 1968) (“The [FTCA] time\nlimitation is not tolled during a claimant’s minority.”);\nBrown v. United States, 353 F.2d 578, 579 (9th Cir. 1965)\n(“It is well established that minority does not toll the\nlimitations period prescribed in the Federal Tort Claims\nAct.”); Pittman v. United States, 341 F.2d 739, 740 (9th Cir.\n1965) (refusing to toll the FTCA’s statute of limitations for\na minor); United States v. Glenn, 231 F.2d 884, 887 (9th Cir.\n1956) (same).\n\n Congress, if so minded, may establish exceptions for\ncertain disabilities—including minority—and has done so in\nvarious federal statutes. See, e.g., 18 U.S.C. § 2255(b)(2);\n28 U.S.C. § 2501. By contrast, the FTCA began with a\nstatute of limitations that was “without express qualification\nfor legal disability,” and each time Congress amended the\nlimitation period, it did not add a tolling provision. Glenn,\n231 F.2d at 886; see also 28 U.S.C. § 2401(b). Indeed,\nCongress considered proposed amendments providing for\nminority tolling of the FTCA’s statute of limitations. E.g.,\nH.R. 3260, 3261, 101st Cong. (1989). But these proposed\namendments have not become law. Had Congress wanted to\ninclude minority tolling in the FTCA’s statute of limitations,\nit could have done so.\n\n Booth asks that we ignore the prior FTCA case law\nrejecting minority tolling here, arguing that Wong/June\nrequires that we abandon sixty years of precedent.\nWong/June says nothing to indicate that our past decisions\non this discrete issue are incorrect. The Supreme Court was\nsilent on minority tolling. And we have grounded our rule\nagainst minority tolling in part on considerations\nindependent of whether the FTCA’s statute of limitations is\njurisdictional. Our case law emphasizes that Congress does\nnot appear to have intended to expand that waiver of\n\f12 BOOTH V. UNITED STATES\n\nimmunity for the entire time an injured party is a minor. See\nPittman, 341 F.2d at 741 (“We do not believe that the\nCongress could have intended that infants have up to\n21 years for a statute of limitations.”). Under these cases,\nthe parent or guardian holds a legal duty to take action on\nbehalf of the minor child. Landreth, 850 F.2d at 534. The\nparent’s knowledge of the injury and its cause is imputed to\nthe minor, leaving the parent responsible for initiation of suit\nin a timely manner. Id. These considerations have no\nrelation to whether the statute of limitations is\njurisdictional. 6 In short, the Supreme Court’s decision in\nWong/June does not suggest, let alone hold, that minority\ntolling applies to the FTCA.\n\n As Booth recognizes, the statute of limitations for non-\ntort claims brought against the United States, which is also\nfound under § 2401, does contain a tolling provision. See\n28 U.S.C. § 2401(a) (“Except as provided by chapter 71 of\ntitle 41, every civil action commenced against the United\nStates shall be barred unless the complaint is filed within six\nyears after the right of action first accrues. The action of any\nperson under legal disability or beyond the seas at the time\nthe claim accrues may be commenced within three years\nafter the disability ceases.”). Although, on its face, the\nsecond sentence of subsection (a) is generic, we held in\nGlenn that it is not. See 231 F.2d at 886. Glenn noted that,\nalthough both § 2401(a) and § 2401(b) are now contained in\nthe same statute, they did not begin that way. See id. Based\n\n 6\n Our sister circuits would appear to agree. The Third and Eight\nCircuits recognized before Wong/June that the FTCA’s statute of\nlimitations was not jurisdictional. See Santos, 559 F.3d at 197; Schmidt\nv. United States, 933 F.2d 639, 640 (8th Cir. 1991). At the same time,\nthese circuits held that minority tolling of the FTCA’s statute of\nlimitations was not available. Santos, 559 F.3d at 197; Wilson ex rel.\nWilson v. Gunn, 403 F.3d 524, 526 (8th Cir. 2005).\n\f BOOTH V. UNITED STATES 13\n\non the legislative history of § 2401 and the sources of\nsubsections (a) and (b), Glenn concluded that Congress did\nnot intend “that the sentence in [§ 2401(a)] qualified the\nlimitation on tort claims set forth in [§ 2401(b)].” Id.\n\n Booth asks us to overrule Glenn. Putting aside that\nBooth raised this argument for the first time at oral\nargument, thus waiving it, we may not overrule Glenn, as\nthere is no Supreme Court or en banc case inconsistent with\nit. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003)\n(en banc).\n\n Moreover, applying subsection (a)’s tolling provision to\nclaims covered by subsection (b) would create an anomaly.\nUnder that interpretation, a formerly disabled plaintiff would\nhave three years to file an action after the disability ceases,\nnotwithstanding subsection (b)’s requirement that such\nclaims be filed with the agency within two years after the\nclaim accrues. Compare 28 U.S.C. § 2401(a) (“The action of\nany person under legal disability or beyond the seas at the\ntime the claim accrues may be commenced within three\nyears after the disability ceases.” (emphasis added)), with id.\n§ 2401(b) (“A tort claim against the United States shall be\nforever barred unless it is presented in writing to the\nappropriate Federal agency within two years after such claim\naccrues . . . .” (emphasis added)). We can think of no reason\nCongress would have devised such a scheme.\n\n We therefore reject Booth’s argument that the tolling\nprovision in subsection (a) should apply to claims covered\nby subsection (b).\n\f14 BOOTH V. UNITED STATES\n\n B. Tolling for Minority Status Alone Is a Statutory\n Matter Separate from Equitable Tolling\n\n Separate and distinct from the statutory concept of\nminority tolling is equitable tolling. “[A] court may pause\nthe running of a limitations statute . . . when a party ‘has\npursued his rights diligently but some extraordinary\ncircumstance’ prevents him from meeting a deadline.”\nWong/June, 135 S. Ct. at 1631 (quoting Lozano v. Montoya\nAlvarez, — U.S. —, 134 S. Ct. 1224, 1231–32, 188 L. Ed.\n2d 200 (2014)). This is the concept of equitable tolling. “In\napplying equitable tolling, courts ‘follow a tradition in which\ncourts of equity have sought to relieve hardships which, from\ntime to time, arise from a hard and fast adherence to more\nabsolute legal rules, which, if strictly applied, threaten the\nevils of archaic rigidity.” Wong, 732 F.3d at 1052 (quoting\nHolland v. Florida, 560 U.S. 631, 650, 130 S. Ct. 2563, 177\nL. Ed. 2d 130 (2010)).\n\n To obtain equitable tolling a litigant must establish\n“(1) that he has been pursuing his rights diligently, and\n(2) that some extraordinary circumstances stood in his way.”\nId. (citation omitted). The first element requires “the effort\nthat a reasonable person might be expected to deliver under\nhis or her particular circumstances,” id. (quoting Doe v.\nBusby, 661 F.3d 1001, 1015 (9th Cir. 2011)), and asks\nwhether the plaintiff was “‘without any fault’ in pursuing his\nclaim,” id. (quoting FEC v. Williams, 104 F.3d 237, 240 (9th\nCir. 1996)). The second element requires the litigant to\n“show that extraordinary circumstances were the cause of his\nuntimeliness and . . . made it impossible to file the document\non time.” Id. (quoting Ramirez v. Yates, 571 F.3d 993, 997\n(9th Cir. 2009)). “Whether a particular untimely claim may\nbe excused for a particular reason varies with the reason.”\nId. at 1051.\n\f BOOTH V. UNITED STATES 15\n\n As noted above, suspending a limitations period during\nminority has been available not as a result of equitable\ntolling but only where a statute expressly so provides. See\nVance, 108 U.S. at 521. Particular circumstances connected\nto one’s age could support equitable tolling. For example,\nthere may be cause for equitable tolling if a minor is\nabandoned by his parents and/or guardians and so left\nunprotected. Cf. Zavala ex rel. Ruiz v. United States,\n876 F.2d 780, 784 (9th Cir. 1989) (“He does not persuade us\nthat the alleged abandonment left him unprotected . . . .”).\nLikewise, some states have recognized that equitable tolling\nmay be appropriate where a minor is “a ward of the state\nwithout a next friend or guardian of his estate” or “has a\nguardian of his person with interests possibly adverse to his\nown,” Caron v. Adams, 638 A.2d 1073, 1079 (Conn. App.\nCt. 1994), or where the cause of action is not reasonably\nknowable by the plaintiff or her parents because of her\nminority, see Wimberly v. Gatch, 635 So. 2d 206, 217 (La.\n1994).\n\n Still, minority alone is not the type of exceptional\ncircumstance described above. In multiple cases involving\nminors with FTCA claims, this Court has considered\nwhether minority tolling applies (and held that it does not),\nand then separately considered whether equitable tolling\napplies and concluded that there was not a sufficient basis\nfor equitable tolling. See Papa, 281 F.3d at 1011; Zavala,\n876 F.2d at 784. In so ruling in Zavala, this Court noted that\nthe minor had “a parent who had both the duty to bring a\nclaim and the knowledge necessary to pursue it.” 876 F.2d\nat 784. Booth has shown no evidence to indicate that this\nwas not the case here as well, or to indicate any extraordinary\ncircumstances outside of the mere fact of his minority.\n\f16 BOOTH V. UNITED STATES\n\n Accordingly, we hold that there is no minority tolling of\nthe FTCA’s statute of limitations and that minority alone\ndoes not merit equitable tolling of the FTCA’s statute of\nlimitations. The district court’s grant of summary judgment\nto the United States is AFFIRMED.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Anthony Booth v. United States\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-01-31\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nANTHONY K. BOOTH, in his own No. 16-17084\\nright and on behalf of all statutory\\nbeneficiaries, D.C. No.\\n Plaintiff-Appellant, 2:11-cv-00901-\\n SPL\\n v.\\n\\nUNITED STATES OF AMERICA, OPINION\\n Defendant-Appellee.\\n\\n\\n\\n Appeal from the United States District Court\\n for the District of Arizona\\n Steven Paul Logan, District Judge, Presiding\\n\\n Argued and Submitted December 6, 2017\\n San Francisco, California\\n\\n Filed January 31, 2019\\n\\f2 BOOTH V. UNITED STATES\\n\\n Before: Mary M. Schroeder and Marsha S. Berzon, *\\n Circuit Judges, and Sara Lee Ellis, ** District Judge.\\n\\n Opinion by Judge Sara L. Ellis\\n\\n\\n SUMMARY ***\\n\\n\\n Federal Tort Claims Act\\n\\n The panel affirmed the district court’s summary\\njudgment in favor of the United States in a Federal Tort\\nClaims Act (“FTCA”) action alleging that a United States\\nagency negligently caused plaintiff’s father’s death while\\nplaintiff was a minor.\\n\\n The district court found that the claims were time-barred\\nbecause the minor’s representative submitted them too late.\\nThe minor argued on appeal that his minority should have\\noperated to toll the statute of limitations on his claims.\\n\\n The panel held that there is no minority tolling of the\\nFTCA’s statute of limitations. The panel further held that\\nthe Supreme Court’s decision in United States v. Wong, 135\\n\\n *\\n This case was submitted to a panel that included Judge Kozinski,\\nwho retired. Following Judge Kozinski’s retirement, Judge Berzon was\\ndrawn by lot to replace him. Ninth Circuit General Order 3.2.h. Judge\\nBerzon has read the briefs and reviewed the record.\\n\\n **\\n The Honorable Sara Lee Ellis, United States District Judge for the\\nNorthern District of Illinois, sitting by designation.\\n ***\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\f BOOTH V. UNITED STATES 3\\n\\nS. Ct. 1625 (2015), did not suggest, let alone hold, that\\nminority tolling applied to the FTCA. The panel also held\\nthat minority alone does not merit equitable tolling of the\\nFTCA’s statute of limitations. Accordingly, the panel\\naffirmed the district court’s judgment in favor of the\\ngovernment.\\n\\n\\n COUNSEL\\n\\nJohn P. Leader (argued), The Leader Law Firm, Tucson,\\nArizona, for Plaintiff-Appellant.\\n\\nAnn E. Harwood (argued), Assistant United States Attorney;\\nKrissa M. Lanham, Deputy Appellate Chief; Elizabeth A.\\nStrange, Acting United States Attorney; United States\\nAttorney’s Office, Phoenix, Arizona; for Defendant-\\nAppellee.\\n\\n\\n OPINION\\n\\nELLIS, District Judge:\\n\\n Plaintiff-Appellant Anthony K. Booth claims that a\\nUnited States agency negligently caused his father’s death\\nwhile Booth was a minor. Because Booth was a minor, his\\nmother, acting as his representative, sued the United States\\npursuant to the Federal Tort Claims Act (“FTCA”),\\n28 U.S.C. § 2671 et seq. The district court found that the\\nclaims were time-barred because Booth’s representative\\nsubmitted them too late. Booth appeals, arguing that\\nminority should operate to toll the statute of limitations on\\nhis claims. Because we conclude that prior decisions\\nholding that there is no minority tolling for the FTCA’s\\n\\f4 BOOTH V. UNITED STATES\\n\\nstatute of limitations remain binding, and conclude that\\nminority tolling is a separate statutory matter from equitable\\ntolling, we affirm the district court’s decision.\\n\\nI. Procedural and Factual Background\\n\\n Booth’s father, also named Anthony Booth, died in a car\\naccident on an Arizona highway on February 19, 2005. The\\nyounger Booth was weeks from his tenth birthday when he\\nlost his father.\\n\\n Booth’s mother, Marlene June, timely filed an\\nAdministrative Form 95 with the Federal Highway\\nAdministration (“FHWA”), and on May 5, 2011, filed suit\\nagainst the United States in federal court in Arizona, on\\nbehalf of Booth and other statutory beneficiaries (the late\\nAnthony Booth’s mother, daughters, and other son), alleging\\nthat a highway barrier that failed during the highway\\naccident was not tested and approved in accord with FHWA\\nrules. 1 Booth was fifteen years old when June filed the\\nadministrative claim and sixteen years old at the time she\\nfiled the lawsuit.\\n\\n The FTCA requires administrative exhaustion and sets\\ntime limits for both exhaustion and the filing of a lawsuit.\\n“An action shall not be instituted upon a claim against the\\nUnited States for money damages for injury or loss of\\nproperty or personal injury or death caused by the negligent\\nor wrongful act or omission of any employee of the\\nGovernment . . . unless the claimant shall have first\\npresented the claim to the appropriate Federal agency and\\n 1\\n Booth later substituted in as named plaintiff when he turned 18,\\nhence the title of this appeal. But for a good portion of the suit, June was\\nthe named plaintiff. We refer in this opinion to the appropriate named\\nplaintiff for the pertinent time period under discussion.\\n\\f BOOTH V. UNITED STATES 5\\n\\nhis claim shall have been finally denied by the agency in\\nwriting and sent by certified or registered mail.” 28 U.S.C.\\n§ 2675. “A tort claim against the United States shall be\\nforever barred unless it is presented in writing to the\\nappropriate Federal agency within two years after such claim\\naccrues . . . .” 28 U.S.C. § 2401(b). Such a tort claim is also\\nbarred “unless action is begun within six months after the\\ndate of mailing, by certified or registered mail, of notice of\\nfinal denial of the claim by the agency to which it was\\npresented.” Id. 2\\n\\n The Government moved to dismiss June’s case, arguing\\nthat the FTCA’s statute of limitations could not be tolled.\\nThe district court agreed, finding that the claim had accrued\\nmore than two years before June presented it to the federal\\nagency and holding that, under Ninth Circuit precedent, the\\nFTCA’s statute of limitations is not subject to equitable\\ntolling or tolling for minority of the injured party. June\\nappealed.\\n\\n While June’s appeal was pending, an en banc panel of\\nthis Court was considering Wong v. Beebe, 732 F.3d 1030\\n(9th Cir. 2013) (en banc). Wong also involved tolling of the\\nFTCA’s statute of limitations. The plaintiff-appellant in\\nWong sought equitable tolling of the FTCA’s statute of\\nlimitations for the time to file suit after bringing a claim to\\nthe administrative agency. Id. at 1034. We held that the\\nFTCA’s statute of limitations is not jurisdictional and is\\nsubject to equitable tolling. Id. at 1047, overruling Marley\\nv. United States, 567 F.3d 1030 (9th Cir. 2009).\\n\\n\\n\\n 2\\n We refer to the two-year and six-month statute of limitations\\ncollectively in this opinion as the FTCA’s statute of limitations.\\n\\f6 BOOTH V. UNITED STATES\\n\\n After Wong, the panel hearing June’s initial appeal\\nissued a memorandum disposition that reversed the district\\ncourt’s decision granting the Government’s motion to\\ndismiss June’s lawsuit and remanded the issue of equitable\\ntolling to the district court. June v. United States, 550 F.\\nApp’x 505 (9th Cir. 2013) (unpublished decision). The\\nGovernment then sought certiorari for both that decision and\\nWong.\\n\\n The Supreme Court took both cases, addressing and\\naffirming them both and ruling that the FTCA’s statute of\\nlimitations (both the two-year time limit after accrual for\\npresenting claims to the administrative agency and the six-\\nmonth time limit for suit after denial of a claim by an agency)\\nis not jurisdictional, but instead is subject to equitable\\ntolling. United States v. Wong (“Wong/June”), — U.S. —,\\n135 S. Ct. 1625, 191 L. Ed. 2d 533 (2015). The Supreme\\nCourt remanded June’s case.\\n\\n June’s case resumed in district court. Booth, having\\nreached the age of majority by this time, substituted in as\\nnamed plaintiff. The Government then moved for summary\\njudgment, arguing that Booth’s claim was barred by the\\nFTCA’s statute of limitations because June, as Booth’s\\nrepresentative, did not file a claim with the administrative\\nagency until more than five years after Booth’s father’s car\\naccident and there were no circumstances that called for\\nequitable tolling. Booth cross-moved for summary\\njudgment, arguing that the statute of limitations should be\\ntolled because the nature of the Government’s involvement\\nin the car accident had been concealed, and because Booth\\nhad been a minor at the time of the accident, at the time June\\nfiled an administrative claim, and at the time June filed suit.\\n\\n The district court granted the Government’s motion for\\nsummary judgment. The district court held, as it had\\n\\f BOOTH V. UNITED STATES 7\\n\\ndetermined before the appeal, that Booth’s claim accrued on\\nthe day of his father’s accident, February 19, 2005, and that\\nBooth had submitted his claim to the FHWA more than two\\nyears later, through his mother June, on December 16, 2010.\\nThe district court concluded that Booth could not equitably\\ntoll the statute of limitations on concealment grounds and\\nalso that Booth had waived any argument that his age tolled\\nthe statute of limitations, as he had failed to raise the issue in\\nthe prior appeal. Booth moved for reconsideration. The\\ndistrict court denied the motion, and Booth timely appealed.\\n\\nII. Standard of Review\\n\\n The Court reviews the district court’s grant of summary\\njudgment de novo. Estate of Lopez ex rel. Lopez v. Gelhaus,\\n871 F.3d 998, 1005 (9th Cir. 2017). We adopt the same\\nstandard used by the district court and “view the evidence in\\nthe light most favorable to the nonmoving party, determine\\nwhether there are any genuine issues of material fact, and\\ndecide whether the district court correctly applied the\\nrelevant substantive law.” Animal Legal Def. Fund v. U.S.\\nFood & Drug Admin., 836 F.3d 987, 989 (9th Cir. 2016).\\n\\nIII. Analysis\\n\\n On appeal, Booth asserts that his status as a minor during\\nmost of these proceedings tolls the FTCA’s statute of\\nlimitations—specifically that portion of the statute of\\nlimitations that requires a plaintiff to file a claim with the\\nresponsible agency within two years of the accrual of the\\n\\f8 BOOTH V. UNITED STATES\\n\\nclaim. 3 28 U.S.C. § 2401(b). No longer considered\\njurisdictional, the FTCA’s statute of limitations can now be\\ntolled, Wong, 732 F.3d at 1047, including for equitable\\nconsiderations, Wong/June, 135 S. Ct. at 1633 (“The time\\nlimits in the FTCA are just time limits, nothing more. Even\\nthough they govern litigation against the Government, a\\ncourt can toll them on equitable grounds.”). Booth argues\\nthat minority tolling—the rule applicable in many\\ncircumstances that statutes of limitations are tolled during\\nthe minority of the would-be plaintiff—should be applicable\\nunder the FTCA. He also maintains being a minor is\\nsufficient for equitable tolling of the FTCA’s statute of\\nlimitations.4\\n\\n\\n 3\\n Booth does not challenge on appeal the district court’s decision\\nthat the government’s alleged concealment does not justify equitable\\ntolling.\\n\\n In his briefing, Booth did not challenge the district court’s\\ndetermination that his claim accrued on the day of the accident. Because\\nhe raised the issue for the first time at argument, he has waived it. See\\nHarger v. Dep’t of Labor, 569 F.3d 898, 904 n.9 (9th Cir. 2009).\\n 4\\n We can dispose of two issues at the outset. The first is the\\nGovernment’s argument that the district court properly found that Booth\\nhad waived the issue of minority tolling. Wong and Wong/June changed\\nthe Ninth Circuit’s previous rule precluding any tolling of the FTCA\\nstatute of limitations, so Booth could not have waived the question of\\nhow that change affects minority tolling. See Gallardo v. United States,\\n755 F.3d 860, 865 (9th Cir. 2014) (equitable tolling issue not waived\\nwhen not raised before Wong). The second is Booth’s argument that\\nArizona’s minority tolling statute applies and tolls the FTCA’s statute of\\nlimitations. State rules on minority tolling do not apply. “A court must\\nlook to state law for the purpose of defining the actionable wrong for\\nwhich the United States shall be liable, but to federal law for the\\nlimitations of time within which the action must be brought.” Poindexter\\nv. United States, 647 F.2d 34, 36 (9th Cir. 1981); see also Santos ex rel.\\n\\f BOOTH V. UNITED STATES 9\\n\\n A. The Rule Against Minority Tolling of the FTCA’s\\n Statute of Limitations Should Continue to Apply\\n\\n Minority tolling statutes provide that if a cause of action\\naccrues when a plaintiff is a child, the statute of limitations\\non that cause of action is suspended until the plaintiff attains\\nthe age of majority. The policy reason underlying such\\nstatutes, as enunciated by one state appellate court in this\\nCircuit, is “[b]ecause a minor does not have the\\nunderstanding or experience of an adult, and because a minor\\nmay not bring an action except through a guardian . . .\\nspecial safeguards are required to protect the minor’s right\\nof action.” W. Shield Investigations & Sec. Consultants v.\\nSuperior Court, 82 Cal. App. 4th 935, 947 (Ct. App. 2000)\\n(quoting L.C. Amie v. Superior Court, 99 Cal. App. 3d 421,\\n426 (Ct. App. 1979)), disapproved of on other grounds by\\nGatto v. County of Sonoma, 98 Cal. App. 4th 744 (Ct. App.\\n2002). The states in this Circuit all have statutes providing\\nfor minority tolling for state-law tort claims. See Alaska\\nStat. § 09.10.140(a); Ariz. Rev. Stat. Ann. § 12-502; Cal.\\nCiv. Proc. Code § 352(a); Haw. Rev. Stat. § 657-13; Idaho\\nCode § 5-230; Mont. Code Ann. § 27-2-401(1); Nev. Rev.\\nStat. § 11.250; Or. Rev. Stat. § 12.160(1)–(2); Wash. Rev.\\nCode § 4.16.190(1).\\n\\n As the Fourth Circuit has recognized, “[t]he blackletter\\nrule . . . is that a statute of limitations runs against all\\npersons, even those under a disability, unless the statute\\nexpressly provides otherwise.” Vogel v. Linde, 23 F.3d 78,\\n80 (4th Cir. 1994). The Supreme Court long ago recognized\\nthis rule as extending to minority tolling: “The exemptions\\nfrom the operation of statutes of limitations, usually\\n\\nBaeato v. United States, 559 F.3d 189, 193 (3d Cir. 2009) (“[S]tate-law\\ntolling statutes do not apply to the FTCA’s limitations period.”).\\n\\f10 BOOTH V. UNITED STATES\\n\\naccorded to infants . . . , do not rest upon any general\\ndoctrine of the law . . . but in every instance upon express\\nlanguage in those statutes giving them time, after majority\\n. . . to assert their rights.” Vance v. Vance, 108 U.S. 514,\\n521, 2 S. Ct. 854, 27 L. Ed. 808 (1883); see also United\\nStates v. Alvarez, 710 F.3d 565, 568 n.10 (5th Cir. 2013)\\n(“The federal courts have consistently rejected requests to\\ncreate tolling exceptions for minors, reasoning that in the\\nabsence of an express legislative directive to the contrary,\\nparents and guardians are assumed to be adequate\\nsurrogates.”). Federal courts have consistently applied\\nVance, following minority tolling for federal statutes of\\nlimitations only if the statute setting out the limitations\\nperiod so specifies. 5 See, e.g., Alvarez, 710 F.3d at 567;\\nVogel, 23 F.3d at 80.\\n\\n Consistent with the Vance principle, we have never\\nrecognized minority tolling for the FTCA’s statute of\\nlimitations. See Papa v. United States, 281 F.3d 1004, 1001\\n(9th Cir. 2002) (“The time limitation for FTCA claims is not\\ntolled during a claimant’s minority.”); Landreth ex rel. Ore\\nv. United States, 850 F.2d 532, 534 (9th Cir. 1988) (“The\\nfact of minority does not toll the statute.”); Fernandez v.\\nUnited States, 673 F.2d 269, 271 (9th Cir. 1982) (noting that\\nno minority tolling applies under the FTCA); Mann v. United\\n\\n 5\\n Minority tolling may be available for federal causes of action that\\nborrow the statute of limitations from state law such as § 1983, but only\\nif the relevant state law also includes a minority tolling provision and\\nthat provision is not “inconsistent with the federal policy underlying the\\ncause of action under consideration.” Bd. of Regents of Univ. of N.Y. v.\\nTomanio, 446 U.S. 478, 485, 100 S. Ct. 1790, 64 L.Ed.2d 440 (1980);\\nsee also Bishop v. Children’s Ctr. for Developmental Enrichment,\\n618 F.3d 533, 538 (6th Cir. 2010). As already noted, state tolling\\nprovisions do not apply to the FTCA’s limitations period. See\\nPoindexter v. United States, 647 F.2d at 36.\\n\\f BOOTH V. UNITED STATES 11\\n\\nStates, 399 F.2d 672, 673 (9th Cir. 1968) (“The [FTCA] time\\nlimitation is not tolled during a claimant’s minority.”);\\nBrown v. United States, 353 F.2d 578, 579 (9th Cir. 1965)\\n(“It is well established that minority does not toll the\\nlimitations period prescribed in the Federal Tort Claims\\nAct.”); Pittman v. United States, 341 F.2d 739, 740 (9th Cir.\\n1965) (refusing to toll the FTCA’s statute of limitations for\\na minor); United States v. Glenn, 231 F.2d 884, 887 (9th Cir.\\n1956) (same).\\n\\n Congress, if so minded, may establish exceptions for\\ncertain disabilities—including minority—and has done so in\\nvarious federal statutes. See, e.g., 18 U.S.C. § 2255(b)(2);\\n28 U.S.C. § 2501. By contrast, the FTCA began with a\\nstatute of limitations that was “without express qualification\\nfor legal disability,” and each time Congress amended the\\nlimitation period, it did not add a tolling provision. Glenn,\\n231 F.2d at 886; see also 28 U.S.C. § 2401(b). Indeed,\\nCongress considered proposed amendments providing for\\nminority tolling of the FTCA’s statute of limitations. E.g.,\\nH.R. 3260, 3261, 101st Cong. (1989). But these proposed\\namendments have not become law. Had Congress wanted to\\ninclude minority tolling in the FTCA’s statute of limitations,\\nit could have done so.\\n\\n Booth asks that we ignore the prior FTCA case law\\nrejecting minority tolling here, arguing that Wong/June\\nrequires that we abandon sixty years of precedent.\\nWong/June says nothing to indicate that our past decisions\\non this discrete issue are incorrect. The Supreme Court was\\nsilent on minority tolling. And we have grounded our rule\\nagainst minority tolling in part on considerations\\nindependent of whether the FTCA’s statute of limitations is\\njurisdictional. Our case law emphasizes that Congress does\\nnot appear to have intended to expand that waiver of\\n\\f12 BOOTH V. UNITED STATES\\n\\nimmunity for the entire time an injured party is a minor. See\\nPittman, 341 F.2d at 741 (“We do not believe that the\\nCongress could have intended that infants have up to\\n21 years for a statute of limitations.”). Under these cases,\\nthe parent or guardian holds a legal duty to take action on\\nbehalf of the minor child. Landreth, 850 F.2d at 534. The\\nparent’s knowledge of the injury and its cause is imputed to\\nthe minor, leaving the parent responsible for initiation of suit\\nin a timely manner. Id. These considerations have no\\nrelation to whether the statute of limitations is\\njurisdictional. 6 In short, the Supreme Court’s decision in\\nWong/June does not suggest, let alone hold, that minority\\ntolling applies to the FTCA.\\n\\n As Booth recognizes, the statute of limitations for non-\\ntort claims brought against the United States, which is also\\nfound under § 2401, does contain a tolling provision. See\\n28 U.S.C. § 2401(a) (“Except as provided by chapter 71 of\\ntitle 41, every civil action commenced against the United\\nStates shall be barred unless the complaint is filed within six\\nyears after the right of action first accrues. The action of any\\nperson under legal disability or beyond the seas at the time\\nthe claim accrues may be commenced within three years\\nafter the disability ceases.”). Although, on its face, the\\nsecond sentence of subsection (a) is generic, we held in\\nGlenn that it is not. See 231 F.2d at 886. Glenn noted that,\\nalthough both § 2401(a) and § 2401(b) are now contained in\\nthe same statute, they did not begin that way. See id. Based\\n\\n 6\\n Our sister circuits would appear to agree. The Third and Eight\\nCircuits recognized before Wong/June that the FTCA’s statute of\\nlimitations was not jurisdictional. See Santos, 559 F.3d at 197; Schmidt\\nv. United States, 933 F.2d 639, 640 (8th Cir. 1991). At the same time,\\nthese circuits held that minority tolling of the FTCA’s statute of\\nlimitations was not available. Santos, 559 F.3d at 197; Wilson ex rel.\\nWilson v. Gunn, 403 F.3d 524, 526 (8th Cir. 2005).\\n\\f BOOTH V. UNITED STATES 13\\n\\non the legislative history of § 2401 and the sources of\\nsubsections (a) and (b), Glenn concluded that Congress did\\nnot intend “that the sentence in [§ 2401(a)] qualified the\\nlimitation on tort claims set forth in [§ 2401(b)].” Id.\\n\\n Booth asks us to overrule Glenn. Putting aside that\\nBooth raised this argument for the first time at oral\\nargument, thus waiving it, we may not overrule Glenn, as\\nthere is no Supreme Court or en banc case inconsistent with\\nit. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003)\\n(en banc).\\n\\n Moreover, applying subsection (a)’s tolling provision to\\nclaims covered by subsection (b) would create an anomaly.\\nUnder that interpretation, a formerly disabled plaintiff would\\nhave three years to file an action after the disability ceases,\\nnotwithstanding subsection (b)’s requirement that such\\nclaims be filed with the agency within two years after the\\nclaim accrues. Compare 28 U.S.C. § 2401(a) (“The action of\\nany person under legal disability or beyond the seas at the\\ntime the claim accrues may be commenced within three\\nyears after the disability ceases.” (emphasis added)), with id.\\n§ 2401(b) (“A tort claim against the United States shall be\\nforever barred unless it is presented in writing to the\\nappropriate Federal agency within two years after such claim\\naccrues . . . .” (emphasis added)). We can think of no reason\\nCongress would have devised such a scheme.\\n\\n We therefore reject Booth’s argument that the tolling\\nprovision in subsection (a) should apply to claims covered\\nby subsection (b).\\n\\f14 BOOTH V. UNITED STATES\\n\\n B. Tolling for Minority Status Alone Is a Statutory\\n Matter Separate from Equitable Tolling\\n\\n Separate and distinct from the statutory concept of\\nminority tolling is equitable tolling. “[A] court may pause\\nthe running of a limitations statute . . . when a party ‘has\\npursued his rights diligently but some extraordinary\\ncircumstance’ prevents him from meeting a deadline.”\\nWong/June, 135 S. Ct. at 1631 (quoting Lozano v. Montoya\\nAlvarez, — U.S. —, 134 S. Ct. 1224, 1231–32, 188 L. Ed.\\n2d 200 (2014)). This is the concept of equitable tolling. “In\\napplying equitable tolling, courts ‘follow a tradition in which\\ncourts of equity have sought to relieve hardships which, from\\ntime to time, arise from a hard and fast adherence to more\\nabsolute legal rules, which, if strictly applied, threaten the\\nevils of archaic rigidity.” Wong, 732 F.3d at 1052 (quoting\\nHolland v. Florida, 560 U.S. 631, 650, 130 S. Ct. 2563, 177\\nL. Ed. 2d 130 (2010)).\\n\\n To obtain equitable tolling a litigant must establish\\n“(1) that he has been pursuing his rights diligently, and\\n(2) that some extraordinary circumstances stood in his way.”\\nId. (citation omitted). The first element requires “the effort\\nthat a reasonable person might be expected to deliver under\\nhis or her particular circumstances,” id. (quoting Doe v.\\nBusby, 661 F.3d 1001, 1015 (9th Cir. 2011)), and asks\\nwhether the plaintiff was “‘without any fault’ in pursuing his\\nclaim,” id. (quoting FEC v. Williams, 104 F.3d 237, 240 (9th\\nCir. 1996)). The second element requires the litigant to\\n“show that extraordinary circumstances were the cause of his\\nuntimeliness and . . . made it impossible to file the document\\non time.” Id. (quoting Ramirez v. Yates, 571 F.3d 993, 997\\n(9th Cir. 2009)). “Whether a particular untimely claim may\\nbe excused for a particular reason varies with the reason.”\\nId. at 1051.\\n\\f BOOTH V. UNITED STATES 15\\n\\n As noted above, suspending a limitations period during\\nminority has been available not as a result of equitable\\ntolling but only where a statute expressly so provides. See\\nVance, 108 U.S. at 521. Particular circumstances connected\\nto one’s age could support equitable tolling. For example,\\nthere may be cause for equitable tolling if a minor is\\nabandoned by his parents and/or guardians and so left\\nunprotected. Cf. Zavala ex rel. Ruiz v. United States,\\n876 F.2d 780, 784 (9th Cir. 1989) (“He does not persuade us\\nthat the alleged abandonment left him unprotected . . . .”).\\nLikewise, some states have recognized that equitable tolling\\nmay be appropriate where a minor is “a ward of the state\\nwithout a next friend or guardian of his estate” or “has a\\nguardian of his person with interests possibly adverse to his\\nown,” Caron v. Adams, 638 A.2d 1073, 1079 (Conn. App.\\nCt. 1994), or where the cause of action is not reasonably\\nknowable by the plaintiff or her parents because of her\\nminority, see Wimberly v. Gatch, 635 So. 2d 206, 217 (La.\\n1994).\\n\\n Still, minority alone is not the type of exceptional\\ncircumstance described above. In multiple cases involving\\nminors with FTCA claims, this Court has considered\\nwhether minority tolling applies (and held that it does not),\\nand then separately considered whether equitable tolling\\napplies and concluded that there was not a sufficient basis\\nfor equitable tolling. See Papa, 281 F.3d at 1011; Zavala,\\n876 F.2d at 784. In so ruling in Zavala, this Court noted that\\nthe minor had “a parent who had both the duty to bring a\\nclaim and the knowledge necessary to pursue it.” 876 F.2d\\nat 784. Booth has shown no evidence to indicate that this\\nwas not the case here as well, or to indicate any extraordinary\\ncircumstances outside of the mere fact of his minority.\\n\\f16 BOOTH V. UNITED STATES\\n\\n Accordingly, we hold that there is no minority tolling of\\nthe FTCA’s statute of limitations and that minority alone\\ndoes not merit equitable tolling of the FTCA’s statute of\\nlimitations. The district court’s grant of summary judgment\\nto the United States is AFFIRMED.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":373,"cells":{"id":{"kind":"number","value":4586381,"string":"4,586,381"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"American Beverage Assn. v. City & County of San Francisco"},"decision_date":{"kind":"string","value":"2019-01-31"},"docket_number":{"kind":"string","value":"16-16072"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: Sidney R. Thomas, Chief Judge, and Dorothy W. Nelson, Susan P. Graber, William A. Fletcher, Marsha S. Berzon, Sandra S. Ikuta, Mary H. Murguia, Morgan Christen, Jacqueline H. Nguyen, Andrew D. Hurwitz, and John B. Owens, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"type\": \"010combined\", \"text\": \"FOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nAMERICAN BEVERAGE No. 16-16072\\nASSOCIATION; CALIFORNIA\\nRETAILERS ASSOCIATION, D.C. No.\\n Plaintiffs-Appellants, 3:15-cv-03415-EMC\\n\\n and\\n\\nCALIFORNIA STATE OUTDOOR\\nADVERTISING ASSOCIATION,\\n Plaintiff,\\n\\n v.\\n\\nCITY AND COUNTY OF SAN\\nFRANCISCO,\\n Defendant-Appellee.\\n\\n2 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\\n\\nAMERICAN BEVERAGE No. 16-16073\\nASSOCIATION; CALIFORNIA\\nRETAILERS ASSOCIATION, D.C. No.\\n Plaintiffs, 3:15-cv-03415-EMC\\n\\n and\\n OPINION\\nCALIFORNIA STATE OUTDOOR\\nADVERTISING ASSOCIATION,\\n Plaintiff-Appellant,\\n\\n v.\\n\\nCITY AND COUNTY OF SAN\\nFRANCISCO,\\n Defendant-Appellee.\\n\\n\\n Appeals from the United States District Court\\n for the Northern District of California\\n Edward M. Chen, District Judge, Presiding\\n\\n Argued and Submitted En Banc September 25, 2018\\n Pasadena, California\\n\\n Filed January 31, 2019\\n\\n Before: Sidney R. Thomas, Chief Judge, and Dorothy W.\\n Nelson, Susan P. Graber, William A. Fletcher, Marsha S.\\n Berzon, Sandra S. Ikuta, Mary H. Murguia, Morgan\\n Christen, Jacqueline H. Nguyen, Andrew D. Hurwitz,\\n and John B. Owens, Circuit Judges.\\n\\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 3\\n\\n Opinion by Judge Graber;\\n Concurrence by Judge Ikuta;\\n Concurrence by Judge Christen;\\n Concurrence by Judge Nguyen\\n\\n\\n SUMMARY*\\n\\n\\n Civil Rights\\n\\n The en banc court reversed the district court’s denial of a\\npreliminary injunction and remanded in an action challenging\\nthe City and County of San Francisco’s Sugar-Sweetened\\nBeverage Warning Ordinance, which requires health\\nwarnings on advertisements for certain sugar-sweetened\\nbeverages.\\n\\n Plaintiffs, the American Beverage Association, California\\nRetailers Association, and California State Outdoor\\nAdvertising Association, argued that the Ordinance violated\\ntheir First Amendment right to freedom of speech. The en\\nbanc court, relying on National Institute of Family & Life\\nAdvocates v. Becerra (NIFLA), 138 S. Ct. 2361 (2018),\\nconcluded that Plaintiffs will likely succeed on the merits of\\ntheir claim that the Ordinance is an “unjustified or unduly\\nburdensome disclosure requirement[] [that] might offend the\\nFirst Amendment by chilling protected commercial speech.”\\nZauderer v. Office of Disciplinary Counsel, 471 U.S. 626,\\n651 (1985). The en banc court determined that the remaining\\n\\n\\n *\\n This summary constitutes no part of the opinion of the court. It has\\nbeen prepared by court staff for the convenience of the reader.\\n\\n4 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\\n\\npreliminary injunction factors also weighed in Plaintiffs’\\nfavor.\\n\\n Concurring, Judge Ikuta stated that because the\\nAssociations had shown a likelihood of prevailing on the\\nmerits and because the other factors for granting a\\npreliminary injunction weighed in the Associations’ favor,\\nshe agreed with the majority’s conclusion that the district\\ncourt abused its discretion by denying the Associations’\\nmotion for a preliminary injunction. But Judge Ikuta stated\\nthat because the majority failed to apply NIFLA’s framework\\nfor analyzing when government-compelled speech violates\\nthe First Amendment, she dissented from the majority’s\\nreasoning.\\n\\n Concurring in part and concurring in the judgment, Judge\\nChristen, joined by Chief Judge Thomas, agreed with the\\nmajority that Zauderer’s framework applied to the\\ngovernment-compelled speech at issue in this case. Judge\\nChristen also agreed that the district court’s decision must be\\nreversed, but she would not reach the issue the majority relied\\nupon. Judge Christen would reverse because the City and\\nCounty of San Francisco could not show that the speech it\\nsought to compel was purely factual.\\n\\n Concurring in the judgment, Judge Nguyen disagreed\\nwith the majority’s expansion of Zauderer’s rational basis\\nreview to commercial speech that is not false, deceptive, or\\nmisleading. Judge Nguyen stated that because the majority\\nreached the right result under the wrong legal standard, she\", \"author\": \"GRABER, Circuit Judge:\"}, {\"type\": \"concurrence\", \"author\": \"respectfully\", \"text\": \"respectfully concurred only in the judgment.\\n\\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 5\\n\\n COUNSEL\\n\\nRichard P. Bress (argued), George C. Chipev, Michael E.\\nBern, and Melissa Arbus Sherry, Latham & Watkins LLP,\\nWashington, D.C.; Marcy C. Priedman, Latham & Watkins\\nLLP, San Francisco, California; for Plaintiffs-Appellants.\\n\\nJeremy Michael Goldman (argued) and Wayne Snodgrass,\\nDeputy City Attorneys; Dennis J. Herrera, City Attorney;\\nOffice of the City Attorney, San Francisco, California; for\\nDefendant-Appellee.\\n\\nWencong Fa and Meriem L. Hubbard, Pacific Legal\\nFoundation, Sacramento, California, for Amicus Curiae\\nPacific Legal Foundation.\\n\\nRobert Corn-Revere, Ronald G. London, Davis Wright\\nTremaine LLP, Washington, D.C., for Amicus Curiae The\\nAssociation of National Advertisers, Inc.\\n\\nWarren Postman and Katheryn Comerford Todd, Litigation\\nCenter Inc., Washington, D.C.; Jeremy J. Broggi, Megan L.\\nBrown, and Bert W. Rein, Wiley Rein LLP, Washington,\\nD.C., for Amicus Curiae Chamber of Commerce of the\\nUnited States of America.\\n\\nMark S. Chenoweth, Cory L. Andrews, and Richard A. Samp,\\nWashington Legal Foundation, Washington, D.C., for\\nAmicus Curiae Washington Legal Foundation.\\n\\nAllison M. Zieve, Julie A. Murray, and Scott L. Nelson,\\nPublic Citizen Litigation Group, Washington, D.C., for\\nAmicus Curiae Public Citizens, Inc.\\n\\n6 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\\n\\nSophia TonNu, Thomas Bennigson, and Seth E. Mermin,\\nPublic Good Law Center, Berkeley, California; Sabrina\\nAdler, Ian McLaughlin, and Benjamin D. Wing, Changelab\\nSolutions, Oakland, California, for Amici Curiae American\\nHeart Association, American Academy of Pediatrics,\\nCalifornia, California Academy of Family Physicians,\\nCalifornia Chapter of the American Association of Clinical\\nEndocrinologists, California Endowment, California Medical\\nAssociation, California Pan-Ethnic Health Network,\\nChangelab Solutions, Community Health Partnership,\\nCrossfit Foundation, Diabetes Coalition of California,\\nHealthy Food America, Latino Coalition for a Healthy\\nCalifornia, National Association of Chronic Disease\\nDirectors, National Association of Local Boards of Health,\\nNetwork of Ethnic Physician Organizations, Nicos Chinese\\nHealth Coalition, Prevention Institute, Public Health Institute,\\nPublic Health Law Center, San Francisco Bay Area\\nPhysicians for Social Responsibility, San Francisco\\nCommunity Clinic Consortium, San Francisco Medical\\nSociety, Southern California Public Health Association, and\\nStrategic Alliance.\\n\\nRachel Bloomekatz, Gupta Wessler PLLC, Washington,\\nD.C., for Amici Curiae American Cancer Society Cancer\\nAction Network, Public Health Law Center, Action on\\nSmoking & Health, African American Tobacco Control\\nLeadership Council, American Lung Association, American\\nThoracic Society, Americas for Nonsmokers’ Rights,\\nCampaign for Tobacco-Free Kids, NAATPN, and Truth\\nInitiative Foundation.\\n\\nMaia C. Kats, Center for Science in the Public Interest,\\nWashington, D.C., for Amicus Curiae Center for Science in\\nthe Public Interest.\\n\\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 7\\n\\nPeter C. Tolsdorf and Linda E. Kelly, Manufacturers’ Center\\nfor Legal Action, Washington, D.C.; J. Michael Connolly,\\nThomas R. McCarthy, and William S. Consovoy, Consovoy\\nMcCarthy Park PLLC, Arlington, Virginia; for Amicus\\nCuriae National Association for Manufacturers.\\n\\nDeborah R. White, Retail Litigation Center Inc., Arlington,\\nVirginia; Gabriel K. Gillett, Jenner & Block LLP, Chicago,\\nIllinois; Adam G. Unikowsky, Jenner & Block LLP,\\nWashington, D.C., for Amicus Curiae Retail Litigation\\nCenter.\\n\\nCatherine E. Stetson, Hogan Lovells US LLP, Washington,\\nD.C., for Amicus Curiae Grocery Manufacturers Association.\\n\\n\\n OPINION\\n\\nGRABER, Circuit Judge:\\n\\n Plaintiffs American Beverage Association, California\\nRetailers Association, and California State Outdoor\\nAdvertising Association challenge Defendant City and\\nCounty of San Francisco’s Sugar-Sweetened Beverage\\nWarning Ordinance, City & Cty. of S.F., Cal., Bd. of\\nSupervisors Ordinance No. 100-15, § 1 (June 16, 2015). The\\nOrdinance requires health warnings on advertisements for\\ncertain sugar-sweetened beverages (“SSBs”). Plaintiffs argue\\nthat the Ordinance violates their First Amendment right to\\nfreedom of speech. Relying on the United States Supreme\\nCourt’s decision in National Institute of Family & Life\\nAdvocates v. Becerra (“NIFLA”), 138 S. Ct. 2361 (2018), we\\nconclude that Plaintiffs will likely succeed on the merits of\\ntheir claim that the Ordinance is an “unjustified or unduly\\n\\n8 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\\n\\nburdensome disclosure requirement[] [that] might offend the\\nFirst Amendment by chilling protected commercial speech.”\\nZauderer v. Office of Disciplinary Counsel, 471 U.S. 626,\\n651 (1985). The remaining preliminary injunction factors\\nalso weigh in Plaintiffs’ favor. We therefore hold that the\\ndistrict court abused its discretion by denying Plaintiffs’\\nmotion for a preliminary injunction, and we reverse and\\nremand.\\n\\n FACTUAL AND PROCEDURAL BACKGROUND\\n\\n In June 2015, Defendant enacted the Ordinance, which\\nrequires that certain SSB advertisements (“SSB Ads”) include\\nthe following statement:\\n\\n WARNING: Drinking beverages with added\\n sugar(s) contributes to obesity, diabetes, and\\n tooth decay. This is a message from the City\\n and County of San Francisco.\\n\\nCity & Cty. of S.F., Cal., Health Code art. 42, div. I,\\n§ 4203(a) (2015). An “SSB Ad” covers\\n\\n any advertisement, including, without\\n limitation, any logo, that identifies, promotes,\\n or markets a Sugar-Sweetened Beverage for\\n sale or use that is any of the following: (a) on\\n paper, poster, or a billboard; (b) in or on a\\n stadium, arena, transit shelter, or any other\\n structure; (c) in or on a bus, car, train,\\n pedicab, or any other vehicle; or (d) on a wall,\\n or any other surface or material.\\n\\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 9\\n\\nId. § 4202. Under section 4202, though, an “SSB Ad” does\\nnot include advertising in or on: periodicals; television;\\nelectronic media; SSB containers or packaging; menus; shelf\\ntags; vehicles used by those in the business of manufacturing,\\nselling, or distributing SSBs; or logos that occupy an area of\\nless than 36 square inches. Id. The Ordinance defines “SSB”\\nas “any Nonalcoholic Beverage sold for human consumption,\\nincluding, without limitation, beverages produced from\\nConcentrate, that has one or more added Caloric Sweeteners\\nand contains more than 25 calories per 12 ounces of\\nbeverage.” Id. But “SSB” does not include drinks such as\\nmilk, plant-based milk alternatives, natural fruit and\\nvegetable juices, infant formulas, and supplements. Id. The\\nOrdinance provides detailed instructions regarding the form,\\ncontent, and placement of the warning on SSB Ads, including\\na requirement that the warning occupy at least 20% of the\\nadvertisement and be set off with a rectangular border. Id.\\n§ 4203(b).\\n\\n Defendant’s stated purpose in requiring the warning is,\\namong other reasons, to “inform the public of the presence of\\nadded sugars and thus promote informed consumer choice\\nthat may result in reduced caloric intake and improved diet\\nand health, thereby reducing illnesses to which SSBs\\ncontribute and associated economic burdens.” Id. § 4201.\\nFailure to comply with the warning requirement can result in\\nadministrative penalties imposed by San Francisco’s Director\\nof Health. Id. § 4204(a).\\n\\n Plaintiffs sued to prevent implementation of the\\nOrdinance. The district court denied Plaintiffs’ motion for a\\npreliminary injunction. Concluding that Plaintiffs likely\\nwould not succeed on the merits of their First Amendment\\nchallenge, the district court held that the warning is not\\n\\n10 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\\n\\nmisleading, does not place an undue burden on Plaintiffs’\\ncommercial speech, and is rationally related to a substantial\\ngovernmental interest. But the court stayed implementation\\nof the Ordinance pending this timely interlocutory appeal.\\n\\n A three-judge panel of this court reversed the district\\ncourt’s denial of a preliminary injunction, Am. Beverage\\nAss’n v. City & County of San Francisco, 871 F.3d 884 (9th\\nCir. 2017). We then ordered that the case be reheard en banc,\\n880 F.3d 1019 (9th Cir. 2018).\\n\\n JURISDICTION AND STANDARDS OF REVIEW\\n\\n We have jurisdiction under 28 U.S.C. § 1292.\\n\\n We review the denial of a preliminary injunction for\\nabuse of discretion. Harris v. Bd. of Supervisors, 366 F.3d\\n754, 760 (9th Cir. 2004). A district court abuses its discretion\\nif it rests its decision “on an erroneous legal standard or on\\nclearly erroneous factual findings.” United States v. Schiff,\\n379 F.3d 621, 625 (9th Cir. 2004) (internal quotation marks\\nomitted). “We review conclusions of law de novo and\\nfindings of fact for clear error.” All. for the Wild Rockies v.\\nCottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (internal\\nquotation marks omitted).\\n\\n DISCUSSION\\n\\n A preliminary injunction is an extraordinary remedy that\\nmay be awarded only if the plaintiff clearly shows entitlement\\nto such relief. Winter v. Nat. Res. Def. Council, Inc.,\\n555 U.S. 7, 22 (2008). “A plaintiff seeking a preliminary\\ninjunction must establish [1] that he is likely to succeed on\\nthe merits, [2] that he is likely to suffer irreparable harm in\\n\\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 11\\n\\nthe absence of preliminary relief, [3] that the balance of\\nequities tips in his favor, and [4] that an injunction is in the\\npublic interest.” Id. at 20.\\n\\n A. Test for Analyzing a Claim of Compelled Speech\\n\\n We begin by considering Plaintiffs’ likelihood of success\\non the merits of their First Amendment challenge. The First\\nAmendment provides that “Congress shall make no law . . .\\nabridging the freedom of speech.”1 U.S. Const. amend. I. Its\\nprotection is broad, and the Supreme Court has “been\\nreluctant to mark off new categories of speech for diminished\\nconstitutional protection.” NIFLA, 138 S. Ct. at 2372\\n(internal quotation marks omitted). But NIFLA also\\nacknowledged that the Court has “applied a lower level of\\nscrutiny to laws that compel disclosures in certain contexts,”\\nincluding cases analyzing the required disclosure of “factual,\\nnoncontroversial information in . . . ‘commercial speech.’”\\nId.\\n\\n The Ordinance regulates commercial speech and compels\\ncertain disclosures.2 Therefore, in addressing Plaintiffs’\\nclaim, we first determine what level of scrutiny applies. The\\nparties dispute whether we should analyze the Ordinance’s\\ncompliance with the First Amendment under Central Hudson\\nGas & Electric Corp. v. Public Service Commission, 447 U.S.\\n\\n\\n 1\\n The Due Process Clause of the Fourteenth Amendment incorporates\\nthe First Amendment against the states. Va. State Bd. of Pharmacy v. Va.\\nCitizens Consumer Council, Inc., 425 U.S. 748, 749 n.1 (1976).\\n 2\\n Judge Ikuta’s special concurrence discusses at length a proposition\\nthat no one disputes: that the warning is compelled speech, requiring a\\nFirst Amendment analysis.\\n\\n12 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\\n\\n557 (1980), or under Zauderer, 471 U.S. 626. We have\\ndiscussed those two tests previously, stating that:\\n\\n Under Central Hudson, the government\\n may restrict or prohibit commercial speech\\n that is neither misleading nor connected to\\n unlawful activity, as long as the governmental\\n interest in regulating the speech is substantial.\\n 447 U.S. at 564. The restriction or prohibition\\n must “directly advance the governmental\\n interest asserted,” and must not be “more\\n extensive than is necessary to serve that\\n interest.” Id. at 566. Under Zauderer . . . , the\\n government may compel truthful disclosure in\\n commercial speech as long as the compelled\\n disclosure is “reasonably related” to a\\n substantial governmental interest. Zauderer,\\n 471 U.S. at 651.\\n\\nCTIA–The Wireless Ass’n v. City of Berkeley, 854 F.3d 1105,\\n1115 (9th Cir. 2017).3\\n\\n In NIFLA, the Supreme Court applied the Zauderer test\\nwithout deciding whether that test, in fact, applied. NIFLA,\\n138 S. Ct. at 2376–77. But before NIFLA, we examined a\\nsimilar health and safety warning and held squarely that\\nZauderer provides the proper analytical framework for\\nconsidering required warnings on commercial products:\\n\\n\\n 3\\n The Supreme Court vacated and remanded our opinion in CTIA for\\nreconsideration in light of NIFLA. CTIA, 138 S. Ct. 2708 (2018). As will\\nbe evident from the text that follows, we reconsider relevant portions of\\nCTIA here in light of NIFLA and see nothing in NIFLA that is inconsistent\\nwith those aspects of CTIA with which we agree in this opinion.\\n\\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 13\\n\\n“[T]he government may compel truthful disclosure in\\ncommercial speech as long as the compelled disclosure is\\n‘reasonably related’ to a substantial governmental interest.”\\nCTIA, 854 F.3d at 1115. We rejected the argument that\\nintermediate scrutiny—as required by Central Hudson,\\n447 U.S. 557, for situations in which speech is restricted or\\nprohibited—should govern. CTIA, 854 F.3d at 1115–17. We\\nalso rejected the argument that Zauderer applies only to\\nsituations in which the government requires disclosures to\\nprevent consumer deception, pointing out that we were\\njoining the holdings of several of our sister circuits. Id. at\\n1116–17 (citing Am. Meat Inst. v. U.S. Dep’t of Agric.,\\n760 F.3d 18 (D.C. Cir. 2014) (en banc); Disc. Tobacco City\\n& Lottery, Inc. v. United States, 674 F.3d 509 (6th Cir. 2012);\\nN.Y. State Rest. Ass’n v. N.Y. City Bd. of Health, 556 F.3d 114\\n(2d Cir. 2009); Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d\\n104 (2d Cir. 2001)).\\n\\n NIFLA requires us to reexamine how we approach a First\\nAmendment claim concerning compelled speech. But\\nnothing in NIFLA suggests that CTIA was wrongly decided.\\nTo the contrary, NIFLA preserved the exception to heightened\\nscrutiny for health and safety warnings. The Supreme Court\\nmade clear that it was not calling into “question the legality\\nof health and safety warnings long considered permissible.”\\nNIFLA, 138 S. Ct. at 2376.4 NIFLA did not address, and a\\n\\n 4\\n Judge Ikuta’s special concurrence reads this portion of NIFLA to\\nmean that only certain health and safety warnings (those of ancient origin)\\nare excepted from heightened scrutiny. But the most natural reading of\\nthis passage in the Court’s opinion is that required health and safety\\nwarnings, which have long been permitted, are still allowed. In this\\nstatement, the NIFLA majority was countering Justice Breyer’s dissent,\\nwhich lists examples of such warnings, including both mandatory advice\\nconcerning seat belts and mandatory advice about the availability of a\\n\\n14 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\\n\\nfortiori did not disapprove, the circuits’ precedents, including\\nCTIA, which have unanimously held that Zauderer applies\\noutside the context of misleading advertisements. See CTIA,\\n854 F.3d at 1116–17 (citing cases from the D.C., Second, and\\nSixth Circuits). In short, we reaffirm our reasoning and\\nconclusion in CTIA that Zauderer provides the appropriate\\nframework to analyze a First Amendment claim involving\\ncompelled commercial speech—even when the government\\nrequires health and safety warnings, rather than warnings to\\nprevent the deception of consumers. CTIA, 854 F.3d at 1117.\\nWe therefore proceed to apply Zauderer to Defendant’s\\nrequired warning.\\n\\n B. Application of the Zauderer test\\n\\n The Zauderer test, as applied in NIFLA, contains three\\ninquiries: whether the notice is (1) purely factual,\\n(2) noncontroversial, and (3) not unjustified or unduly\\nburdensome. A compelled disclosure accompanying a related\\nproduct or service must meet all three criteria to be\\nconstitutional. NIFLA, 138 S. Ct. at 2372. Neither NIFLA\\nnor any other Supreme Court precedent requires that we\\napply these criteria in any particular order. The NIFLA\\nCourt’s analysis began with the question whether the notice\\nwas “unjustified or unduly burdensome.” Id. at 2377 (citing\\nZauderer, 471 U.S. at 651). By following the same sequence,\\nwe do not suggest that courts must begin by analyzing\\nwhether a disclosure requirement is unjustified or unduly\\n\\n\\nwhooping cough vaccine, 138 S. Ct. at 2380–81. There is no indication\\nthat either of those required disclosures is of ancient origin or that the\\nmajority intended some health and safety warnings (if accurate,\\nuncontroversial, and not unduly burdensome) to be precluded merely\\nbecause the knowledge that the warnings convey is new.\\n\\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 15\\n\\nburdensome, but we find it useful to begin with that prong\\nhere. Defendant has the burden of proving that the warning\\nis neither unjustified nor unduly burdensome. Ibanez v. Fla.\\nDep’t of Bus. & Prof’l Regulation, 512 U.S. 136, 146 (1994).\\nOn this preliminary record, Defendant has not carried its\\nburden.5\\n\\n Defendant’s argument that the border and 20% size\\nrequirements adhere to the best practices for health and safety\\nwarnings is unpersuasive. We recognize that some tobacco\\nand prescription warnings must occupy at least 20% of those\\nproducts’ labels or advertisements. Am. Beverage Ass’n v.\\nCity & County of San Francisco, 187 F. Supp. 3d 1123,\\n1138–39 (N.D. Cal. 2016). And Defendant’s expert\\nconcluded that larger warnings are more effective. But the\\nrecord here shows that a smaller warning—half the\\nsize—would accomplish Defendant’s stated goals.\\n\\n Defendant’s expert cited and discussed a study that\\nexamined a warning similar to that required by the\\nOrdinance.6 That study used warnings covering only 10% of\\nthe image. The expert concluded that the cited study\\n“provides empirical support that the message content and\\n\\n\\n 5\\n Contrary to Judge Ikuta’s characterization, we do not preclude\\nDefendant from arguing that the Ordinance survives heightened scrutiny.\\nConcurrence at 28. Logically, though, if the warning does not meet a\\nlower standard, it necessarily does not meet a higher standard. See\\nNIFLA, 138 S. Ct. at 2377 (“Even under Zauderer, a disclosure\\nrequirement cannot be ‘unjustified or unduly burdensome.’” (quoting\\nZauderer, 471 U.S. at 651)).\\n 6\\n The study’s warning read “Safety Warning: Drinking beverages\\nwith added sugar[s] contributes to obesity, diabetes, and tooth decay,” and\\nincluded a border.\\n\\n16 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\\n\\ndesign of the San Francisco warning is associated [with] an\\nimproved understanding of health harms associated with\\noverconsumption of SSBs and may reduce the purchase of\\nSSBs—two of the primary objectives identified in the San\\nFrancisco ordinance.” The findings of that study thus\\nundermine Defendant’s position, because the findings suggest\\nthat the Ordinance’s goals could be accomplished with a\\nsmaller warning. On this record, therefore, the 20%\\nrequirement is not justified when balanced against its likely\\nburden on protected speech.\\n\\n In addition, the argument that the Ordinance incorporates\\nbest practices does not respond to the First Amendment\\nbalancing test that we must apply. Although the disclosures\\nin NIFLA were more onerous than the Ordinance’s disclosure,\\nsimilar concerns are present here: Defendants have not\\nshown that the contrasting rectangular border containing a\\nwarning that covers 20% of the advertisement does not\\n“drown[] out” Plaintiffs’ messages and “effectively rule[] out\\nthe possibility of having [an advertisement] in the first place.”\\n138 S. Ct. at 2378 (internal quotation marks omitted). On this\\nrecord, therefore, the 20% requirement is not justified and is\\nunduly burdensome when balanced against its likely burden\\non protected speech.\\n\\n To be clear, we do not hold that a warning occupying\\n10% of product labels or advertisements necessarily is valid,\\nnor do we hold that a warning occupying more than 10% of\\nproduct labels or advertisements necessarily is invalid. See\\nid. (“We express no view on the legality of a similar\\ndisclosure requirement that is better supported or less\\nburdensome.”). Rather, we hold only that, on this record,\\nDefendant has not carried its burden to demonstrate that the\\nOrdinance’s requirement is not “unjustified or unduly\\n\\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 17\\n\\nburdensome.” See id. at 2377. The required warnings\\ntherefore offend Plaintiffs’ First Amendment rights by\\nchilling protected speech. See id. at 2378 (“[The notice]\\nimposes an unduly burdensome disclosure requirement that\\nwill chill [the speaker’s] protected speech.”).\\n\\n The Supreme Court made clear in NIFLA that a\\ngovernment-compelled disclosure that imposes an undue\\nburden fails for that reason alone. Id. at 2377. Indeed, the\\nCourt ended its own analysis with that holding. Id. at 2378.\\nWe need not, and therefore do not, decide whether the\\nwarning here is factually accurate and noncontroversial.\\n\\n The remaining factors of the preliminary injunction test\\nalso favor an injunction. Because Plaintiffs have a colorable\\nFirst Amendment claim, they have demonstrated that they\\nlikely will suffer irreparable harm if the Ordinance takes\\neffect. See Doe v. Harris, 772 F.3d 563, 583 (9th Cir. 2014)\\n(“A colorable First Amendment claim is irreparable injury\\nsufficient to merit the grant of relief.” (internal quotation\\nmarks omitted)). Next, “[t]he fact that [Plaintiffs] have raised\\nserious First Amendment questions compels a finding that . . .\\nthe balance of hardships tips sharply in [Plaintiffs’] favor.”\\nCmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1059 (9th\\nCir. 2007) (internal quotation marks omitted). Finally, we\\nhave “consistently recognized the significant public interest\\nin upholding First Amendment principles.” Doe, 772 F.3d at\\n583 (internal quotation marks omitted). Indeed, “it is always\\nin the public interest to prevent the violation of a party’s\\nconstitutional rights.” Melendres v. Arpaio, 695 F.3d 990,\\n1002 (9th Cir. 2012) (internal quotation marks omitted).\\n\\n In summary, Plaintiffs have met each of the requirements\\nfor a preliminary injunction. We therefore conclude that the\\n\\n18 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\\n\\ndistrict court abused its discretion by denying Plaintiffs’\\nmotion.\\n\\n REVERSED and REMANDED.\"}, {\"author\": \"IKUTA, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"IKUTA, Circuit Judge, dissenting from most of the reasoning,\\nconcurring in the result:\\n\\n In National Institute of Family & Life Advocates v.\\nBecerra (NIFLA), the Supreme Court provided a framework\\nfor analyzing First Amendment challenges to government-\\ncompelled speech. 138 S. Ct. 2361 (2018). Under this\\nframework, a government regulation that compels a\\ndisclosure (like the San Francisco ordinance in this case) is a\\ncontent-based regulation of speech, which is subject to\\nheightened scrutiny under the First Amendment unless the\\nZauderer exception applies. The majority fails to follow this\\nanalytical framework and makes several crucial errors. I\\ntherefore dissent.\\n\\n I\\n\\n NIFLA broke new ground on several key issues.\\nAlthough the Court has previously considered the\\nconstitutionality of government regulations requiring lawyers\\nto disclose certain information in their advertisements, see\\nZauderer v. Office of Disciplinary Counsel of Supreme Court\\nof Ohio, 471 U.S. 626, 650–51 (1985); see also Milavetz,\\nGallop & Milavetz, P.A. v. United States, 559 U.S. 229,\\n250–52 (2010); Ohralik v. Ohio State Bar Ass’n, 436 U.S.\\n447, 457–59 (1978), NIFLA is the first Supreme Court case\\nto apply Zauderer to commercial speech more generally.\\n\\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 19\\n\\n NIFLA considered the constitutionality of a California\\nstatute that required clinics that primarily served pregnant\\nwomen to post government-drafted notices. NIFLA, 138 S.\\nCt. at 2368. State-licensed clinics were required to post a\\nnotice that stated: “California has public programs that\\nprovide immediate free or low-cost access to comprehensive\\nfamily planning services (including all FDA-approved\\nmethods of contraception), prenatal care, and abortion for\\neligible women.” Id. at 2369 (referred to as the “licensed\\nnotice”). Unlicensed clinics were required to post a notice\\nstating that the “facility is not licensed as a medical facility\\nby the State of California and has no licensed medical\\nprovider who provides or directly supervises the provision of\\nservices.” Id. at 2370 (referred to as the “unlicensed notice”).\\nTwo crisis pregnancy centers, among other plaintiffs, brought\\nsuit, claiming that both the licensed and unlicensed notices\\nviolated their First Amendment rights.\\n\\n NIFLA began by making two important contributions to\\nFirst Amendment jurisprudence. First, in its consideration of\\nthe two government disclosure requirements, NIFLA\\nestablished, for the first time, that government-compelled\\nspeech is a content-based regulation of speech.1 The Court\\nexplained that “[b]y compelling individuals to speak a\\nparticular message,” the licensed notices “alter[ed] the\\ncontent of [their] speech” and thus were content-based\\nregulations. Id. at 2371. Such content-based regulations “are\\n\\n\\n 1\\n This holding arguably supersedes Zauderer, which appeared to\\napply rational basis review to laws requiring attorneys to make certain\\ndisclosures, stating, “we hold that an advertiser’s rights are adequately\\nprotected as long as disclosure requirements are reasonably related to the\\nState’s interest in preventing deception of consumers.” See Zauderer,\\n471 U.S. at 651.\\n\\n20 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\\n\\npresumptively unconstitutional and may be justified only if\\nthe government proves that they are narrowly tailored to\\nserve compelling state interests.” Id.\\n\\n Second, NIFLA made clear that governments may not\\n“impose content-based restrictions on speech without\\npersuasive evidence of a long (if heretofore unrecognized)\\ntradition to that effect.” Id. (cleaned up). The Court therefore\\nrejected a line of circuit court cases holding that professional\\nspeech is exempt “from the rule that content-based\\nregulations of speech are subject to strict scrutiny.” Id. at\\n2371–72. In doing so, NIFLA overruled our opinion in Pickup\\nv. Brown, 740 F.3d 1208 (9th Cir. 2014), as well as a line of\\ndecisions in the Third and Fourth Circuits, see, e.g., King v.\\nGovernor of N.J., 767 F.3d 216 (3d Cir. 2014); Moore-King\\nv. Cty. of Chesterfield, 708 F.3d 560 (4th Cir. 2013). Further,\\nNIFLA emphasized that “[t]his Court has been reluctant to\\nmark off new categories of speech for diminished\\nconstitutional protection.” Id. at 2372 (internal quotation\\nmarks omitted). While the Court did not “question the\\nlegality of health and safety warnings long considered\\npermissible,” id. at 2376, the Court did not create a\\nstandalone exception for such content-based restrictions.\\nInstead, NIFLA reiterated that a category of speech is exempt\\nfrom heightened scrutiny under the First Amendment only if\\nthe state can show a “long (if heretofore unrecognized)\\ntradition to that effect.” Id. at 2372.\\n\\n Against this backdrop, the Court established its analytic\\nframework. A government regulation “compelling\\nindividuals to speak a particular message” is a content-based\\nregulation that is subject to strict scrutiny, subject to two\\nexceptions. Id. at 2372–73. First, the Court held that its\\nprecedents (most notably Zauderer, 471 U.S. at 650) afforded\\n\\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 21\\n\\nmore deferential review to “some laws that require\\nprofessionals to disclose factual, noncontroversial\\ninformation in their ‘commercial speech.’” NIFLA, 138 S.\\nCt. at 2372. Second, states may regulate professional\\nconduct, even though that conduct incidentally involves\\nspeech, such as through informed consent requirements. Id.;\\nsee also Planned Parenthood of Southeastern Pa. v. Casey,\\n505 U.S. 833, 884 (1992).\\n\\n To determine whether the Zauderer exception applies, a\\ncourt must consider whether the compelled speech governs\\nonly [1] “commercial advertising” and requires the disclosure\\nof [2] “purely factual and [3] uncontroversial information\\nabout [4] the terms under which . . . services will be\\navailable.” NIFLA, 138 S. Ct. at 2372 (internal quotation\\nmarks and citations omitted). If the government regulation\\nmeets those requirements, the regulation should be upheld\\nunless it is [5] “unjustified or [6] unduly burdensome.” Id.\\n\\n If the regulation does not qualify for the Zauderer\\nexception, the regulation must survive heightened scrutiny to\\navoid violating the First Amendment. Id. at 2372. The Court\\ndid not decide whether strict scrutiny or intermediate scrutiny\\napplies to government-compelled commercial disclosures that\\ndo not fall under the Zauderer exception. See id.\\n\\n Applying this legal framework to both the licensed and\\nunlicensed notice requirements, the Court held that neither\\nregulation survived First Amendment scrutiny. The Court\\nbegan by considering the notices required for licensed clinics.\\nId. at 2371–72. It first determined that the Zauderer\\nexception did not apply for two reasons. Id. at 2372. First,\\nthe licensed notice was “not limited to purely factual and\\nuncontroversial information about the terms under which . . .\\n\\n22 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\\n\\nservices w[ould] be available,” because the notice “in no way\\nrelate[d] to the services that licensed clinics provide.” Id.\\n(internal quotation marks and citations omitted). Second, the\\nnotice was not limited to uncontroversial information,\\nbecause abortion is “anything but an ‘uncontroversial’ topic.”\\nId.\\n\\n Because the Zauderer exception did not apply (and\\nbecause the exception applicable to regulations of conduct\\nthat incidentally burdens speech, such as informed consent\\nrequirements, did not apply, see id. at 2373–74), the Court\\nthen considered whether the licensed notice requirement\\nsurvived heightened scrutiny. The Court declined to\\ndetermine whether strict scrutiny or intermediate scrutiny\\napplied to the licensed notice, because that notice failed even\\nunder intermediate scrutiny. Id. at 2375. Even assuming the\\nstate had a substantial state interest in providing low-income\\nwomen with information about state-sponsored services, the\\nCourt held that the licensed notice was not sufficiently drawn\\nto achieve this interest: it was underinclusive, imprecisely\\ndrawn, and could have been replaced with less intrusive\\nalternatives. Id. at 2375–76.\\n\\n Turning to the notice required for unlicensed clinics, the\\nCourt again began by considering the applicability of the\\nZauderer exception. Id. at 2376–77. Because the unlicensed\\nnotice stated only that the “facility is not licensed as a\\nmedical facility by the State of California and has no licensed\\nmedical provider who provides or directly supervises the\\nprovision of services,” the Court did not need to address the\\nthreshold Zauderer factors; it was apparent that the\\nunlicensed notice required the disclosure of purely factual and\\nuncontroversial information about the terms under which\\nservices would be available. See id. at 2377. The Court\\n\\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 23\\n\\ninstead focused on whether the notice requirement was\\nunjustified or unduly burdensome. See id. The Court\\nconcluded that California had not satisfied its burden of\\nproving that the unlicensed notice requirement satisfied these\\ntwo prongs, because “California has not demonstrated any\\njustification for the licensed notice that is more than “purely\\nhypothetical,’” id., and the notice unduly burdened protected\\nspeech, id. at 2377–78. The Court held that the notice was\\nunderinclusive because it covered “a curiously narrow subset\\nof speakers.” Id. at 2377. Moreover, the notice would have\\na chilling effect because the statute required that the\\ngovernment-drafted statement be in “larger text [than\\nsurrounding text] or contrasting type or color” and be posted\\nin as many as 13 different languages. Id. at 2378. These\\nrequirements would “drown[] out the facility’s own\\nmessage.” Id.\\n\\n In contrast to its analysis of the licensed notice, the Court\\ndid not address the question whether the unlicensed notice\\nrequirement survived heightened scrutiny; there was no need\\nto do so, because California did “not explain how the\\nunlicensed notice could satisfy any standard other than\\nZauderer.” Id. at 2377 n.3. In other words, because the state\\ndid not make a colorable argument that the unlicensed notice\\nrequirement would survive heightened scrutiny, there was no\\ndispute that the notice requirement violated the unlicensed\\nclinics’ First Amendment rights unless the Zauderer\\nexception applied. Because Zauderer did not apply, the\\nunlicensed notice requirement was invalid, and the Court did\\nnot have to proceed further.\\n\\n24 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\\n\\n II\\n\\n Under NIFLA, San Francisco’s ordinance requiring\\ncompanies who advertise certain sugar-sweetened beverages\\non billboards within San Francisco to include a warning\\nmessage constitutes a “content-based regulation of speech”\\nsubject to heightened scrutiny unless an exception applies.\\n\\n Turning first to the Zauderer exception, a court should\\nconsider whether the regulation requires the disclosure of\\npurely factual and uncontroversial information about the\\nterms under which services will be available. The required\\nwarning states:\\n\\n WARNING: Drinking beverages with added\\n sugar(s) contributes to obesity, diabetes, and\\n tooth decay. This is a message from the City\\n and County of San Francisco.\\n\\nS.F. Health Code § 4203(a).\\n\\n This warning does not provide “purely factual and\\nuncontroversial information about the terms under which . . .\\nservices will be available.” Cf. NIFLA, 138 S. Ct. at 2372;\\nZauderer, 471 U.S. at 651. The factual accuracy of the\\nwarning is disputed in the record. Among other things, the\\nwarning is contrary to statements by the FDA that added\\nsugars are “generally recognized as safe,” 21 C.F.R. §§ 184.1,\\n184.1866, and “can be a part of a healthy dietary pattern”\\nwhen not consumed in excess amounts, 81 Fed. Reg. 33,742,\\n33,760 (May 27, 2016). Moreover, as Judge Christen’s\\nconcurrence points out, the disclosure is literally false with\\nrespect to Type I diabetes. MBC Op. at 34–35. Although\\nNIFLA did not define “uncontroversial,” the warning here\\n\\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 25\\n\\nrequires the advertisers to convey San Francisco’s one-sided\\npolicy views about sugar-sweetened beverages. The record\\nshows this is a controversial topic, and therefore, the\\nordinance does not qualify as “uncontroversial information”\\nunder the third prong of NIFLA. Finally, the warning does\\nnot relate to the terms on which the advertisers provide their\\nservices. The warning merely relates to the consumption of\\nsugar-sweetened beverages, which is a product rather than a\\nservice, and does not address the terms on which that product\\nis provided.\\n\\n Even if the warning requirement provided factual and\\nuncontroversial information about the terms of service, the\\nrequirement would fail because it is unduly burdensome. As\\nthe majority acknowledges, the warning’s size, required font\\nsize, contrasting color, and other requirements contribute to\\nthe severity of the warning’s burden. Maj. Op. at 15–16.\\nNIFLA makes clear that requiring commercial speakers, like\\nthe unlicensed clinics in NIFLA, to fight a government-\\nscripted message that drowns out their own advertisements is\\nunduly burdensome. Moreover, the record indicates that the\\nwarning label would have a chilling effect, causing some\\nmanufacturers of sugar-sweetened beverages to cease\\nadvertising on covered media. Therefore, the Zauderer\\nexception does not apply.\\n\\n Nor does any other exception apply.2 The majority is\\nwrong to the extent it suggests that “NIFLA preserved the\\nexception to heightened scrutiny for health and safety\\nwarnings.” Maj. Op. at 13. NIFLA made clear that only\\n\\n\\n 2\\n Obviously, the warning requirement does not constitute a regulation\\nof professional conduct that incidentally involves speech, such as\\ninformed consent requirements.\\n\\n26 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\\n\\n“health and safety warnings long considered permissible”\\nwould be excepted. See 138 S. Ct. at 2376. California has\\nmade no showing that the warning here was “long considered\\npermissible,” nor could it do so. The types of speech exempt\\nfrom First Amendment protection are “well-defined and\\nnarrowly limited classes of speech, the prevention and\\npunishment of which have never been thought to raise any\\nConstitutional problem,” from 1791 to present. See United\\nStates v. Stevens, 559 U.S. 460, 468–69 (2010). These\\nlimited exceptions include defamation, obscenity, and fraud,\\nsee id., not newly invented classes of speech, see NIFLA,\\n138 S. Ct. at 2371–72. NIFLA did not specify what sorts of\\nhealth and safety warnings date back to 1791, but warnings\\nabout sugar-sweetened beverages are clearly not among them.\\nIndeed, the First Amendment applies even to products that\\npose more obvious threats to health and safety, such as\\ncigarettes. In a case involving restrictions on cigarette\\nadvertisements, the Court held that the “First Amendment\\nalso constrains state efforts to limit the advertising of tobacco\\nproducts, because so long as the sale and use of tobacco is\\nlawful for adults, the tobacco industry has a protected interest\\nin communicating information about its products and adult\\ncustomers have an interest in receiving that information.”\\nLorillard Tobacco Co. v. Reilly, 533 U.S. 525, 571 (2001).\\nGiven this context, our precedents creating a First\\nAmendment exception for government-compelled health and\\nsafety warnings, see CTIA–The Wireless Ass’n v. City of\\nBerkeley, Calif., 854 F.3d 1105, 1116–17 (9th Cir. 2017),\\nvacated, 138 S. Ct. 2708 (2018), are no more persuasive than\\nour precedents creating a First Amendment exception for\\nprofessional speech, which were struck down by NIFLA. In\\nneither case is there a long tradition of government regulation\\ndating back to 1791.\\n\\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 27\\n\\n Because Zauderer does not apply here, NIFLA directs us\\nto consider whether the ordinance survives heightened\\nscrutiny. Under intermediate scrutiny, even assuming that\\nthere is a substantial state interest in warning the public of\\nhealth dangers from drinking sugar-sweetened beverages, the\\nwarning requirement is not sufficiently drawn to that interest.\\nFirst, the requirement is underinclusive both as to the covered\\nproducts and as to the means of advertisement. The\\nordinance does not even apply to all sugar-sweetened\\nbeverages, much less all sugar-sweetened products.\\nMoreover, it applies to posters and billboards, but not digital\\nads or other types of media. Like the notices in NIFLA, the\\nwarning requirement is “wildly underinclusive.” See 138 S.\\nCt. at 2367. Second, San Francisco could disseminate health\\ninformation by other, less burdensome means, such as a less\\nintrusive notice or a public health campaign. Cf. id. at 2376.\\nBecause the warning requirement is not narrowly drawn, it\\ndoes not survive even intermediate scrutiny. Thus, it is not\\nnecessary to determine whether strict or intermediate scrutiny\\napplies here.\\n\\n III\\n\\n While the majority correctly concludes that the\\nadvertisers have shown a likelihood of prevailing on the\\nmerits of their First Amendment claims, the majority fails to\\nfollow the analytic framework set out in NIFLA and makes\\nseveral crucial errors.\\n\\n First, the majority errs by skipping over the threshold\\nquestion regarding Zauderer’s applicability, namely whether\\nthe notice requirement applies to commercial advertising and\\nrequires the disclosure of purely factual and uncontroversial\\ninformation about the terms under which services will be\\n\\n28 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\\n\\navailable. Despite focusing primarily on the undue burden\\nprong, the majority fails to provide any guidance regarding\\nwhen a warning is unjustified or unduly burdensome. Instead\\nof following NIFLA in considering the totality of the\\nrequirements of the unlicensed notice and their effect on the\\nspeaker (there, the clinics) to conclude that the unlicensed\\nnotice was unduly burdensome, see 138 S. Ct. at 2378, the\\nmajority seems to suggest that the test is whether a smaller\\nwarning would accomplish San Francisco’s stated goals.\\nMaj. Op. at 15–16.\\n\\n Most important, the majority errs by failing to consider\\nwhether San Francisco’s ordinance could be upheld under\\nheightened scrutiny even if the Zauderer exception does not\\napply. The majority concedes that it does not “preclude [San\\nFrancisco] from arguing that the Ordinance survives\\nheightened scrutiny.” Maj. Op. at 15 n.5. And here, San\\nFrancisco has done just that, arguing vigorously that its\\nordinance survives intermediate scrutiny. The majority fails\\nto address this argument, apparently on the ground that\\n“logically” any such argument would be futile because “if the\\nwarning does not meet a lower standard, it necessarily does\\nnot meet a higher standard.” Maj. Op. at 15 n.5. This\\nreasoning is flawed. A government regulation, for instance,\\nmay require a commercial speaker to include images of dying\\ncancer patients on cigarette packages. See, e.g., Required\\nWarnings for Cigarette Packages and Advertisements,\\n75 Fed. Reg. 69,524, 69,533 (Nov. 12, 2010) (proposed rule).\\nWhile a court might conclude that such compelled speech is\\nnot “purely factual and uncontroversial,” the court might\\nnevertheless conclude that the regulation meets the test under\\nCentral Hudson Gas & Electric Corp. v. Public Service\\nCommission of New York, 447 U.S. 557, 563–65 (1980)\\n(assuming this case provides the applicable test), because the\\n\\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 29\\n\\ngovernment has a substantial interest in discouraging\\nsmoking, the regulation directly and materially advances the\\ninterest, and the restriction is narrowly tailored to discourage\\nyoung people from smoking (based on expert opinion). In\\nany event, the majority is bound by NIFLA, which requires\\ncourts to consider such arguments: NIFLA applied\\nheightened scrutiny to the licensed notice and indicated that\\nit would have applied heightened scrutiny to the unlicensed\\nnotice had California made any arguments on that point. See\\nNIFLA, 138 S. Ct. at 2377 n.3. The majority’s failure to\\naddress San Francisco’s argument is therefore contrary to\\nSupreme Court direction.\\n\\n Because the Associations have shown a likelihood of\\nprevailing on the merits and because the other factors for\\ngranting a preliminary injunction weigh in the Associations’\\nfavor, I agree with the majority’s conclusion that the district\\ncourt abused its discretion by denying the Associations’\\nmotion for a preliminary injunction. But because the\\nmajority fails to apply NIFLA’s framework for analyzing\\nwhen government-compelled speech violates the First\\nAmendment, I dissent from the majority’s reasoning.\\n\\n\\n\\nCHRISTEN, Circuit Judge, joined by THOMAS, Chief\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4363634/\", \"author_raw\": \"IKUTA, Circuit Judge, dissenting\"}, {\"author\": \"Judge, concurring\", \"type\": \"concurrence\", \"text\": \"Judge, concurring in part and concurring in the judgment:\\n\\n I agree with the majority that Zauderer’s framework\\napplies to the government-compelled speech at issue in this\\ncase. See Zauderer v. Office of Disciplinary Counsel,\\n471 U.S. 626, 651 (1985). I also agree that the district court’s\\ndecision must be reversed, but I would not reach the issue the\\nmajority relies upon. I would reverse because the City and\\n\\n30 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\\n\\nCounty of San Francisco cannot show that the speech it seeks\\nto compel is “purely factual[.]” Id. For this reason, San\\nFrancisco’s proposed warning fails what should be the\\nthreshold inquiry in this case, and it violates the First\\nAmendment.\\n\\n Zauderer considered an attorney’s First Amendment\\nchallenge to a state bar rule. Id. at 632–33, 659 n.3. For\\nattorneys advertising that their clients would not pay fees if\\ntheir lawsuits were unsuccessful, the rule required disclosure\\nthat the clients would still be liable for litigation costs. Id.\\nThe Court held that the bar rule did not violate the First\\nAmendment. In reaching this result, the Court observed that\\n“disclosure requirements trench much more narrowly on an\\nadvertiser’s interests than do flat prohibitions on speech[.]”\\nId. at 651. It was critical to the Court’s decision that the bar\\nrule was intended to prevent consumer deception; the Court\\nstressed that the rule required only the inclusion of “purely\\nfactual and uncontroversial information about the terms under\\nwhich [an attorney’s] services will be available.” Id.\\n(emphasis added).\\n\\n Any sort of compelled speech potentially infringes First\\nAmendment rights, and case law approves government-\\nmandated messages only in very limited contexts. See, e.g.,\\nMilavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S.\\n229, 249–50 (2010) (upholding requirement that lawyers\\ndisclose certain information in advertisements to prevent\\nconsumer deception); Pharm. Care Mgmt. Ass’n v. Rowe,\\n429 F.3d 294, 310 (1st Cir. 2005) (per curiam) (upholding\\nrequirement that pharmacy benefit managers disclose\\nconflicts of interest and certain financial arrangements); Nat’l\\nElec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 113–15 (2d Cir.\\n2001) (upholding labeling requirement intended to increase\\n\\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 31\\n\\nconsumer awareness about the amount of mercury in\\nproducts). Where a government-compelled message “does\\nnot require the disclosure of purely factual information” and\\ninstead “compels the carrying of the [government’s]\\ncontroversial opinion[,]” it is clearly “unconstitutionally\\ncompelled speech[.]” Video Software Dealers Ass’n v.\\nSchwarzenegger, 556 F.3d 950, 953 (9th Cir. 2009), aff’d sub\\nnom. Brown v. Entm’t Merch. Ass’n, 564 U.S. 786 (2011).\\nZauderer and subsequent case law leave no doubt that any\\ngovernment-compelled speech must be, at the very least,\\nfactually accurate.\\n\\n The majority acknowledges that National Institute of\\nFamily & Life Advocates v. Becerra (“NIFLA”), 138 S. Ct.\\n2361 (2018), does not require courts to begin the Zauderer\\nanalysis by addressing whether the compelled speech is\\nunjustified or unduly burdensome; NIFLA did not modify\\nZauderer. NIFLA struck down a California law requiring that\\nclinics primarily serving pregnant women provide certain\\nnotices. See id. at 2378. Licensed clinics were required to\\npost notices that California provides free or low-cost services,\\nincluding abortions, and unlicenced clinics were required to\\ngive notice that they were not licensed to provide medical\\nservices. Id. at 2369. NIFLA held that the speech imposed\\nupon licensed clinics did not satisfy Zauderer because, unlike\\nthe disclosure required for attorneys’ services ads, the notice\\nregarding the availability of abortion services did not “relate[]\\nto the services that licensed clinics provide[d],” and it\\nconcerned the controversial topic of abortion. Id. at 2372.\\nThe notice that unlicensed clinics were compelled to post\\nviolated the First Amendment because, “[e]ven under\\nZauderer, a disclosure requirement cannot be ‘unjustified or\\nunduly burdensome,’” and the Court ruled that California did\\nnot demonstrate any justification for the compelled speech\\n\\n32 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\\n\\nthat was more than purely hypothetical. Id. at 2377 (quoting\\nZauderer, 471 U.S. at 651).\\n\\n Here, our court holds that Zauderer requires compelled\\nspeech to be (1) purely factual; (2) noncontroversial; and\\n(3) not unjustified or unduly burdensome. Additionally, the\\ncompelled speech must relate to the speaker’s services or\\nproducts. Where I differ is with the majority’s application of\\nthe test. The majority skips whether San Francisco’s\\ncompelled warning is factually accurate and jumps straight to\\nasking whether the proposed warning is “unjustified or\\nunduly burdensome.” The court reasons that NIFLA made\\nclear that “a government-compelled disclosure that imposes\\nan undue burden fails for that reason alone,” but the same is\\ntrue of Zauderer’s other requirements. The majority’s\\ndecision to follow NIFLA and address the “unduly\\nburdensome” question first overlooks that there was no\\ndispute in NIFLA about the factual accuracy of the compelled\\nspeech. We have no precedent addressing a government\\nproposal to appropriate commercial advertising space for the\\npurpose of conveying a factually inaccurate message, but\\nwhere, as here, the parties disagree about the veracity of\\ncompelled speech, the court should begin by asking whether\\nthe government’s message is objectively true. Deciding\\nwhether a compelled message is controversial or unduly\\nburdensome will often entail much more subjective\\njudgments. If compelled speech is not factually accurate, the\\ncourt’s inquiry should end.\\n\\n San Francisco seeks to require that advertisements for\\nsugar-sweetened beverages include the following:\\n\\n WARNING: Drinking beverages with added\\n sugar(s) contributes to obesity, diabetes, and\\n\\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 33\\n\\n tooth decay. This is a message from the City\\n and County of San Francisco.\\n\\nTo survive the “purely factual” part of Zauderer’s test, the\\nstatement that beverages with added sugars “contribute[] to”\\nobesity, diabetes, and tooth decay, must be true—yet there is\\nno evidence that it is. To the contrary, “diabetes” is an\\numbrella term referring to both type 1 diabetes (sometimes\\ncalled juvenile-onset or insulin-dependent diabetes) and type\\n2 diabetes. Rather than using the generic term “diabetes,”\\nmedical studies investigating causation are careful to\\ndifferentiate between the two forms of the disease.1 The\\nprecise causes of type 1 diabetes are unknown, but genetic\\nand environmental factors, including viruses, are thought to\\ncontribute to its development.2 Research demonstrates a\\ncorrelation between the consumption of sugar-sweetened\\nbeverages and the development of type 2 diabetes,3 but San\\nFrancisco has not shown that there is any association at all\\nbetween consumption of sugar-sweetened beverages and the\\ndevelopment of type 1 diabetes. Ironically, the American\\nDiabetes Association directly addresses this on its “Diabetes\\n\\n 1\\n See, e.g., M. Vanstone et al., Patient Perspectives on Quality of Life\\nwith Uncontrolled Type 1 Diabetes Mellitus: A Systematic Review and\\nQualitative Meta-synthesis, 15 ONTARIO HEALTH TECH. ASSESSMENT\\nSERIES 1 (2015); Vasanti S. Malik et al., Sugar-Sweetened Beverages,\\nObesity, Type 2 Diabetes Mellitus, and Cardiovascular Disease Risk,\\n121 CIRCULATION 1356 (2010).\\n 2\\n See Type 1 Diabetes: Symptoms & Causes, MAYO CLINIC (Aug. 7,\\n2017), https://www.mayoclinic.org/diseases-conditions/type-1-\\ndiabetes/symptoms-causes/syc-20353011.\\n 3\\n See, e.g., Vasanti S. Malik et al., Sugar-Sweetened Beverages and\\nRisk of Metabolic Syndrome and Type 2 Diabetes: A Meta-Analysis,\\n33 DIABETES CARE 2477 (2010).\\n\\n34 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\\n\\nMyths” webpage, stating that type 1 diabetes is not caused by\\nsugar, it “is caused by genetics and unknown factors that\\ntrigger the onset of the disease.”4 The message that drinking\\nsugar-sweetened beverages “contributes to” diabetes\\n(including type 1 diabetes) is not only not “purely factual and\\nuncontroversial,” it is devoid of scientific support. See\\nZauderer, 471 U.S. at 651.\\n\\n In this particular case, it cannot be doubted that the\\ngovernment’s proposed message is controversial: it would\\nrequire that manufacturers, retailers, and advertisers include\\nin their ads, under a banner that begins “Warning,” the\\nmessage that their product contributes to diabetes even\\nthough the causes of type 1 diabetes are not actually known.5\\nThus, in addition to being factually inaccurate, San\\nFrancisco’s proposed warning also fails Zauderer’s\\nrequirement that the compelled speech be uncontroversial.\\nThough I would strike the warning under either the first or\\nsecond part of Zauderer’s test, my view is that, given the\\nfacts of this case, we should treat Zauderer’s “purely factual”\\ninquiry as the threshold question because it provides a much\\nmore objective basis for disqualifying San Francisco’s\\ncompelled speech. It is possible to envision a scenario in\\nwhich the “unjustified or unduly burdensome” inquiry could\\nprovide a more objective basis for striking a government-\\nmandated message. For example, that could occur if\\ndetermining the accuracy of a proposed message was not as\\n\\n 4\\n See Diabetes Myths, AMERICAN DIABETES ASSOC.,\\nhttp://www.diabetes.org/diabetes-basics/myths/ (last updated Aug. 20,\\n2018).\\n 5\\n See Diabetes: Symptoms & Causes, MAYO CLINIC (Aug. 8, 2018),\\nhttps://www.mayoclinic.org/diseases-conditions/diabetes/symptoms-\\ncauses/syc-20371444.\\n\\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 35\\n\\ncut-and-dried as it is here, or if the government tried to\\ncommandeer the majority of available ad space. This is not\\none of those cases. Because San Francisco’s compelled\\nwarning undeniably fails Zauderer’s “purely factual” hurdle,\\nwe should not reach whether the message is uncontroversial\\nor unduly burdensome; both of those inquiries require the\\ncourt to make more subjective judgments.\\n\\n San Francisco argues that its warning must not be read too\\nliterally, and that consumers will understand that its warning\\nrefers to type 2 diabetes. But the contention that a reasonable\\nperson would understand San Francisco’s intended message\\nis in tension with the goal of having a public health message\\nunderstood by the maximum number of consumers, not just\\nthose with sophisticated levels of health literacy. Because the\\nmessage would be conveyed to sophisticated and\\nunsophisticated consumers, we must read it literally.\\n\\n Relatedly, San Francisco acknowledges that not every\\nconsumer of sugary drinks will become obese or suffer from\\ntooth decay or diabetes. It argues that readers will understand\\nthat its warning is intended to convey a community-wide\\nmessage: that consuming sugar-sweetened beverages will\\nlead to more instances of obesity, diabetes, and tooth decay\\nwithin the City and County as a whole. But even if the\\nqualifier “may” is read into the message, and the warning is\\nunderstood as “sugary drinks may contribute to obesity,\\ndiabetes and tooth decay on a community-wide basis,” it\\nremains untrue with regard to type 1 diabetes.\\n\\n Finally, San Francisco’s compelled message is\\nproblematic because it suggests that sugar is always\\ndangerous for diabetics. In fact, consuming sugar-sweetened\\nbeverages can be medically indicated for a type 1 diabetic\\n\\n36 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\\n\\nwhen there are signs of hypoglycemia, a complication of type\\n1 diabetes, because drinking fruit juice or soda raises blood\\nsugar levels quickly.6\\n\\n Insisting that compelled speech be purely factual may\\nseem persnickety, but there are significant constitutional\\nimplications whenever the government seeks to control our\\nspeech. There are also societal consequences to inaccurate\\ngovernment-mandated messages. In one study, over eighty\\npercent of parents of children with type 1 diabetes and over\\nseventy percent of patients with type 1 diabetes, reported that\\nthey are stigmatized, most commonly by the perception that\\ndiabetes is a character flaw or the result of a failure in\\npersonal responsibility.7\\n\\n San Francisco may be commended for aiming to address\\nserious and growing public health problems, but by\\ncompelling speech that is not factually accurate, it runs afoul\\nof Zauderer’s caution—“in some instances compulsion to\\nspeak may be as violative of the First Amendment as\\nprohibitions on speech.” Zauderer, 471 U.S. at 650. When\\nthe government takes the momentous step of mandating that\\nits message be delivered by private parties, it is exceptionally\\nimportant that the compelled speech be purely factual.\\n\\n For these reasons, though I reach the same result as the\\nmajority, I would hold that the warning San Francisco seeks\\n\\n\\n 6\\n See Type 1 Diabetes: Diagnosis & Treatment, MAYO CLINIC (Aug.\\n7, 2017), https://www.mayoclinic.org/diseases-conditions/type-1-diabetes/\\ndiagnosis-treatment/drc-20353017.\\n 7\\n See Nancy F. Liu et al., Stigma in People with Type 1 or Type 2\\nDiabetes, 35 CLINICAL DIABETES J. 27 (2017).\\n\\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 37\\n\\nto compel fails the threshold requirement of factual accuracy,\\nand end the Zauderer analysis there.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4363634/\", \"author_raw\": \"Judge, concurring\"}, {\"author\": \"NGUYEN, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"NGUYEN, Circuit Judge, concurring in the judgment:\\n\\n In Central Hudson, the Supreme Court held that\\nregulation of commercial speech is evaluated under an\\nintermediate scrutiny standard. See Cent. Hudson Gas &\\nElec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 566 (1980)\\n(requiring that commercial speech regulation “directly\\nadvances” a “substantial” governmental interest and “is not\\nmore extensive than is necessary to serve that interest”).\\nPrior to applying this standard, however, courts must first\\ndetermine whether the speech at issue “is false, deceptive, or\\nmisleading.” Zauderer v. Office of Disciplinary Counsel,\\n471 U.S. 626, 638 (1985); see Central Hudson, 447 U.S. at\\n566. If the regulation addresses speech that falls into one of\\nthese categories, then Zauderer’s rational basis test applies.\\nSee Zauderer, 471 U.S. at 651 (holding that disclosure\\nrequirements comport with the First Amendment “as long as\\n[they] are reasonably related to the State’s interest in\\npreventing deception of consumers” (emphasis added)). With\\nalmost all other types of regulations,1 “the government’s\\npower is more circumscribed,” Central Hudson, 447 U.S. at\\n564, and Central Hudson’s intermediate scrutiny applies.\\n\\n\\n\\n\\n 1\\n Presumably, the rational basis test also applies to “commercial\\nspeech related to illegal activity,” Cent. Hudson, 447 U.S. at 564, which,\\nlike other deceptive speech, deserves less constitutional protection, see id.\\nat 563–64.\\n\\n38 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\\n\\n I disagree with the majority’s expansion of Zauderer’s\\nrational basis review to commercial speech that is not false,\\ndeceptive, or misleading. In the majority’s view, Zauderer\\napplies to regulations requiring public health disclosures. But\\nit is the commercial message’s accuracy—not its\\ncompleteness—that demarcates the boundary between\\nCentral Hudson’s intermediate scrutiny and Zauderer’s\\nrational basis test. “The First Amendment’s concern for\\ncommercial speech is based on the informational function of\\nadvertising.” Id. at 563. “Even when advertising\\ncommunicates only an incomplete version of the relevant\\nfacts, the First Amendment presumes that some accurate\\ninformation is better than no information at all.”2 Id. at 562.\\n\\n The Supreme Court stressed that “Zauderer governs our\\nreview” rather than Central Hudson when a statute is\\n“directed at misleading commercial speech.” Milavetz,\\nGallop & Milavetz, P.A. v. United States, 559 U.S. 229, 249\\n(2010) (emphasis in original). That the “required disclosures\\nare intended to combat the problem of inherently misleading\\ncommercial advertisements” is one of the “essential features\\nof the rule at issue in Zauderer.” Id. at 250. By treating the\\n“false or misleading” requirement as non-essential, the\\nmajority invites reversal.\\n\\n\\n\\n 2\\n The analysis does not differ simply because Central Hudson\\ninvolved prohibited content and the instant case involves mandated\\ncontent. A law compelling the publication of certain content “operates as\\na command in the same sense as a statute or regulation forbidding [a\\nbusiness] to publish specified matter.” Miami Herald Publ’g Co. v.\\nTornillo, 418 U.S. 241, 256 (1974); see also Wooley v. Maynard, 430 U.S.\\n705, 714 (1977) (“[T]he right of freedom of thought protected by the First\\nAmendment against state action includes both the right to speak freely and\\nthe right to refrain from speaking at all.”).\\n\\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 39\\n\\n The Supreme Court recently had the opportunity to\\nexpand Zauderer’s application beyond deceptive speech but\\ndeclined to do so. See Nat’l Inst. of Family & Life Advocates\\nv. Becerra (“NIFLA”), 138 S. Ct. 2361, 2376–77 (2018).\\nInstead, the Court reiterated its “reluctan[ce] to mark off new\\ncategories of speech for diminished constitutional\\nprotection.” NIFLA, 138 S. Ct. at 2372 (quoting Denver Area\\nEduc. Telecommc’ns Consortium, Inc. v. FCC, 518 U.S. 727,\\n804 (1996) (Kennedy, J., dissenting in part, concurring in\\njudgment in part, and dissenting in part)). The Court was\\n“especially reluctant to ‘exempt a category of speech from the\\nnormal prohibition on content-based restrictions.’” Id.\\n(quoting United States v. Alvarez, 567 U.S. 709, 722 (2012)\\n(plurality opinion)) (alteration in NIFLA omitted).\\n\\n The majority’s application of Zauderer to San Francisco’s\\nsugary beverage ordinance is particularly troubling given that\\nit regulates speech based on content. The ordinance applies\\nto “any advertisement . . . that identifies, promotes, or\\nmarkets a Sugar-Sweetened Beverage for sale or use” in\\nspecified media. S.F. Health Code § 4202. To the extent San\\nFrancisco is concerned about the health effects of sugar in\\nfood and beverages, its focus on a specific subset of sugar-\\nladen products is not evenhanded. See Reed v. Town of\\nGilbert, 135 S. Ct. 2218, 2232 (2015). And a requirement for\\nany vendor of sugary products to convey a particular message\\n“is a content-based regulation of speech.” NIFLA, 138 S. Ct.\\nat 2371. While San Francisco’s goal of reducing obesity is\\nlaudable, the appropriate level of scrutiny does not turn on the\\ngovernment’s good intent.\\n\\n I join my colleagues who have previously disagreed with\\napplying Zauderer outside the context of false and misleading\\nspeech, see CTIA–The Wireless Ass’n v. City of Berkeley,\\n\\n40 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\\n\\n854 F.3d 1105, 1125 n.2 (9th Cir. 2017) (Friedland, J.,\\nconcurring in part and dissenting in part) (suggesting that\\n“Zauderer applies only when the government compels a\\ntruthful disclosure to counter a false or misleading\\nadvertisement”), vacated and remanded for reconsideration\\nin light of NIFLA, 138 S. Ct. 2708 (2018), and I share their\\nconcerns that our current case law will lead to “a proliferation\\nof warnings and disclosures compelled by local municipal\\nauthorities” that have “only a tenuous link to a ‘more than\\ntrivial’ government interest,” CTIA, 873 F.3d 774, 777 (9th\\nCir. 2017) (Wardlaw, J., dissenting from denial of reh’g en\\nbanc).\\n\\n Because the majority reaches the right result under the\\nwrong legal standard, I respectfully concur only in the\\njudgment.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4363634/\", \"author_raw\": \"NGUYEN, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"SIDNEY R THOMAS"},"judge2":{"kind":"string","value":"DOROTHY W NELSON"},"judge3":{"kind":"string","value":"SUSAN P GRABER"},"exactly_three_caps":{"kind":"number","value":2,"string":"2"},"extra_judges":{"kind":"string","value":"WILLIAM A FLETCHER; MARSHA S BERZON; SANDRA S IKUTA; MARY H MURGUIA; MORGAN CHRISTEN; JACQUELINE H NGUYEN; ANDREW D HURWITZ; JOHN B OWENS"},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":5,"string":"5"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":1,"string":"1"},"concurrence_count":{"kind":"number","value":3,"string":"3"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4586381/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: American Beverage Assn. v. City & County of San Francisco\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-01-31\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nAMERICAN BEVERAGE No. 16-16072\nASSOCIATION; CALIFORNIA\nRETAILERS ASSOCIATION, D.C. No.\n Plaintiffs-Appellants, 3:15-cv-03415-EMC\n\n and\n\nCALIFORNIA STATE OUTDOOR\nADVERTISING ASSOCIATION,\n Plaintiff,\n\n v.\n\nCITY AND COUNTY OF SAN\nFRANCISCO,\n Defendant-Appellee.\n\n2 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\n\nAMERICAN BEVERAGE No. 16-16073\nASSOCIATION; CALIFORNIA\nRETAILERS ASSOCIATION, D.C. No.\n Plaintiffs, 3:15-cv-03415-EMC\n\n and\n OPINION\nCALIFORNIA STATE OUTDOOR\nADVERTISING ASSOCIATION,\n Plaintiff-Appellant,\n\n v.\n\nCITY AND COUNTY OF SAN\nFRANCISCO,\n Defendant-Appellee.\n\n\n Appeals from the United States District Court\n for the Northern District of California\n Edward M. Chen, District Judge, Presiding\n\n Argued and Submitted En Banc September 25, 2018\n Pasadena, California\n\n Filed January 31, 2019\n\n Before: Sidney R. Thomas, Chief Judge, and Dorothy W.\n Nelson, Susan P. Graber, William A. Fletcher, Marsha S.\n Berzon, Sandra S. Ikuta, Mary H. Murguia, Morgan\n Christen, Jacqueline H. Nguyen, Andrew D. Hurwitz,\n and John B. Owens, Circuit Judges.\n\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 3\n\n Opinion by Judge Graber;\n Concurrence by Judge Ikuta;\n Concurrence by Judge Christen;\n Concurrence by Judge Nguyen\n\n\n SUMMARY*\n\n\n Civil Rights\n\n The en banc court reversed the district court’s denial of a\npreliminary injunction and remanded in an action challenging\nthe City and County of San Francisco’s Sugar-Sweetened\nBeverage Warning Ordinance, which requires health\nwarnings on advertisements for certain sugar-sweetened\nbeverages.\n\n Plaintiffs, the American Beverage Association, California\nRetailers Association, and California State Outdoor\nAdvertising Association, argued that the Ordinance violated\ntheir First Amendment right to freedom of speech. The en\nbanc court, relying on National Institute of Family & Life\nAdvocates v. Becerra (NIFLA), 138 S. Ct. 2361 (2018),\nconcluded that Plaintiffs will likely succeed on the merits of\ntheir claim that the Ordinance is an “unjustified or unduly\nburdensome disclosure requirement[] [that] might offend the\nFirst Amendment by chilling protected commercial speech.”\nZauderer v. Office of Disciplinary Counsel, 471 U.S. 626,\n651 (1985). The en banc court determined that the remaining\n\n\n *\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\n4 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\n\npreliminary injunction factors also weighed in Plaintiffs’\nfavor.\n\n Concurring, Judge Ikuta stated that because the\nAssociations had shown a likelihood of prevailing on the\nmerits and because the other factors for granting a\npreliminary injunction weighed in the Associations’ favor,\nshe agreed with the majority’s conclusion that the district\ncourt abused its discretion by denying the Associations’\nmotion for a preliminary injunction. But Judge Ikuta stated\nthat because the majority failed to apply NIFLA’s framework\nfor analyzing when government-compelled speech violates\nthe First Amendment, she dissented from the majority’s\nreasoning.\n\n Concurring in part and concurring in the judgment, Judge\nChristen, joined by Chief Judge Thomas, agreed with the\nmajority that Zauderer’s framework applied to the\ngovernment-compelled speech at issue in this case. Judge\nChristen also agreed that the district court’s decision must be\nreversed, but she would not reach the issue the majority relied\nupon. Judge Christen would reverse because the City and\nCounty of San Francisco could not show that the speech it\nsought to compel was purely factual.\n\n Concurring in the judgment, Judge Nguyen disagreed\nwith the majority’s expansion of Zauderer’s rational basis\nreview to commercial speech that is not false, deceptive, or\nmisleading. Judge Nguyen stated that because the majority\nreached the right result under the wrong legal standard, she\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: American Beverage Assn. v. City & County of San Francisco\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-01-31\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nAMERICAN BEVERAGE No. 16-16072\\nASSOCIATION; CALIFORNIA\\nRETAILERS ASSOCIATION, D.C. No.\\n Plaintiffs-Appellants, 3:15-cv-03415-EMC\\n\\n and\\n\\nCALIFORNIA STATE OUTDOOR\\nADVERTISING ASSOCIATION,\\n Plaintiff,\\n\\n v.\\n\\nCITY AND COUNTY OF SAN\\nFRANCISCO,\\n Defendant-Appellee.\\n\\n2 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\\n\\nAMERICAN BEVERAGE No. 16-16073\\nASSOCIATION; CALIFORNIA\\nRETAILERS ASSOCIATION, D.C. No.\\n Plaintiffs, 3:15-cv-03415-EMC\\n\\n and\\n OPINION\\nCALIFORNIA STATE OUTDOOR\\nADVERTISING ASSOCIATION,\\n Plaintiff-Appellant,\\n\\n v.\\n\\nCITY AND COUNTY OF SAN\\nFRANCISCO,\\n Defendant-Appellee.\\n\\n\\n Appeals from the United States District Court\\n for the Northern District of California\\n Edward M. Chen, District Judge, Presiding\\n\\n Argued and Submitted En Banc September 25, 2018\\n Pasadena, California\\n\\n Filed January 31, 2019\\n\\n Before: Sidney R. Thomas, Chief Judge, and Dorothy W.\\n Nelson, Susan P. Graber, William A. Fletcher, Marsha S.\\n Berzon, Sandra S. Ikuta, Mary H. Murguia, Morgan\\n Christen, Jacqueline H. Nguyen, Andrew D. Hurwitz,\\n and John B. Owens, Circuit Judges.\\n\\n AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 3\\n\\n Opinion by Judge Graber;\\n Concurrence by Judge Ikuta;\\n Concurrence by Judge Christen;\\n Concurrence by Judge Nguyen\\n\\n\\n SUMMARY*\\n\\n\\n Civil Rights\\n\\n The en banc court reversed the district court’s denial of a\\npreliminary injunction and remanded in an action challenging\\nthe City and County of San Francisco’s Sugar-Sweetened\\nBeverage Warning Ordinance, which requires health\\nwarnings on advertisements for certain sugar-sweetened\\nbeverages.\\n\\n Plaintiffs, the American Beverage Association, California\\nRetailers Association, and California State Outdoor\\nAdvertising Association, argued that the Ordinance violated\\ntheir First Amendment right to freedom of speech. The en\\nbanc court, relying on National Institute of Family & Life\\nAdvocates v. Becerra (NIFLA), 138 S. Ct. 2361 (2018),\\nconcluded that Plaintiffs will likely succeed on the merits of\\ntheir claim that the Ordinance is an “unjustified or unduly\\nburdensome disclosure requirement[] [that] might offend the\\nFirst Amendment by chilling protected commercial speech.”\\nZauderer v. Office of Disciplinary Counsel, 471 U.S. 626,\\n651 (1985). The en banc court determined that the remaining\\n\\n\\n *\\n This summary constitutes no part of the opinion of the court. It has\\nbeen prepared by court staff for the convenience of the reader.\\n\\n4 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO\\n\\npreliminary injunction factors also weighed in Plaintiffs’\\nfavor.\\n\\n Concurring, Judge Ikuta stated that because the\\nAssociations had shown a likelihood of prevailing on the\\nmerits and because the other factors for granting a\\npreliminary injunction weighed in the Associations’ favor,\\nshe agreed with the majority’s conclusion that the district\\ncourt abused its discretion by denying the Associations’\\nmotion for a preliminary injunction. But Judge Ikuta stated\\nthat because the majority failed to apply NIFLA’s framework\\nfor analyzing when government-compelled speech violates\\nthe First Amendment, she dissented from the majority’s\\nreasoning.\\n\\n Concurring in part and concurring in the judgment, Judge\\nChristen, joined by Chief Judge Thomas, agreed with the\\nmajority that Zauderer’s framework applied to the\\ngovernment-compelled speech at issue in this case. Judge\\nChristen also agreed that the district court’s decision must be\\nreversed, but she would not reach the issue the majority relied\\nupon. Judge Christen would reverse because the City and\\nCounty of San Francisco could not show that the speech it\\nsought to compel was purely factual.\\n\\n Concurring in the judgment, Judge Nguyen disagreed\\nwith the majority’s expansion of Zauderer’s rational basis\\nreview to commercial speech that is not false, deceptive, or\\nmisleading. Judge Nguyen stated that because the majority\\nreached the right result under the wrong legal standard, she\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":374,"cells":{"id":{"kind":"number","value":4578285,"string":"4,578,285"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee, v. John Wayne HARGROVE, Defendant - Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Hargrove"},"decision_date":{"kind":"string","value":"2019-01-02"},"docket_number":{"kind":"string","value":"17-2102"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Tymkovich, Baldock, Holmes\", \"parties\": \"\", \"opinions\": [{\"author\": \"HOLMES, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n Tenth Circuit\\n\\n January 2, 2019\\n PUBLISH\\n Elisabeth A. Shumaker\\n UNITED STATES COURT OF APPEALS Clerk of Court\\n\\n TENTH CIRCUIT\\n\\n\\n\\n UNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n v. No. 17-2102\\n JOHN WAYNE HARGROVE,\\n\\n Defendant - Appellant.\\n\\n\\n\\n Appeal from the United States District Court\\n for the District of New Mexico\\n (D.C. No. 2:16-CR-02705-RB-2)\\n\\n\\n\\nRyan A. Ray, Norman Wohlgemuth Chandler Jeter Barnett & Ray, Tulsa,\\nOklahoma, for Defendant-Appellant.\\n\\n\\nDustin C. Segovia, Assistant United States Attorney (John D. Tierney, Acting\\nUnited States Attorney, with him on brief), Office of the United States Attorney\\nfor the District of New Mexico, Las Cruces, New Mexico, for Plaintiff-Appellee.\\n\\n\\n\\n\\nBefore TYMKOVICH, Chief Judge, BALDOCK, and HOLMES, Circuit Judges.\\n\\n\\n\\nHOLMES, Circuit Judge.\\n\\f United States Border Patrol agents found Defendant-Appellant John Wayne\\n\\nHargrove, his girlfriend Janelle Richter, and Edgar Silvas-Hinojos in the desert\\n\\nnear the border between Arizona and New Mexico. They were all in Mr.\\n\\nHargrove’s truck, along with nearly 300 pounds of marijuana and two firearms.\\n\\nMr. Hargrove was subsequently charged with two offenses: (1) conspiracy to\\n\\ndistribute more than 100 kilograms of marijuana in violation of 21 U.S.C. § 846;\\n\\nand (2) possession with the intent to distribute 100 kilograms or more of a\\n\\nmixture and substance containing a detectable amount of marijuana, and aiding\\n\\nand abetting said possession, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and\\n\\n18 U.S.C. § 2. After a two-day jury trial, Mr. Hargrove was found guilty and\\n\\nsentenced to sixty months’ imprisonment.\\n\\n Mr. Hargrove now raises two challenges on appeal. First, with regard to\\n\\nhis trial, Mr. Hargrove asserts that the district court erred in failing to grant him a\\n\\nmistrial after the prosecutor elicited testimony that the district court had\\n\\npreviously barred. Second, Mr. Hargrove contends that the district court erred in\\n\\nfailing to grant him safety-valve relief under § 5C1.2 of the United States\\n\\nSentencing Guidelines (“Guidelines” or “U.S.S.G.”). Because we hold that the\\n\\ndistrict court did not err with respect to either ruling, we affirm.\\n\\n\\n\\n\\n 2\\n\\f I\\n\\n A\\n\\n One night in February 2016, a Border Patrol agent detected seven\\n\\nbackpackers in the desert near Rodeo, New Mexico. 1 This rural area is known for\\n\\nnarcotics trafficking. After that agent observed the backpackers, he alerted other\\n\\nBorder Patrol agents, who moved in to apprehend the backpackers. The agents\\n\\nobserved the seven backpackers enter an area containing ranching equipment. Six\\n\\nof the seven backpackers then left this area without their backpacks. The agents\\n\\ndetained these six backpackers. The backpackers were dressed in camouflage\\n\\nclothing and wearing carpeted booties on their feet, which are typically worn to\\n\\nmask footprints. They admitted they had entered the country illegally.\\n\\n The dispatched agents then began looking for the missing (i.e., seventh)\\n\\nbackpacker and the discharged backpacks. The agents discovered a truck that\\n\\nappeared to be occupied by two individuals who were “trying to conceal\\n\\nthemselves or pretend[ing] to be sleeping in the truck, kind of slouching low in\\n\\ntheir chairs.” R., Vol. III, at 46 (Trial Tr., dated Oct. 17–18, 2016). As they\\n\\napproached, the agents could detect the smell of marijuana emanating from the\\n\\ntruck. An agent tapped on the truck’s window and asked the occupant on the\\n\\n\\n\\n 1\\n In the narcotics-trafficking context, a “backpacker” is a person who\\nsmuggles marijuana across the United States-Mexico border. See R., Vol. III, at\\n36–37 (Trial Tr., dated Oct. 17–18, 2016).\\n\\n 3\\n\\fdriver’s side—a woman, later identified as Ms. Richter—to roll down the\\n\\nwindow. After she did so, Ms. Richter got out of the vehicle. Likewise, an agent\\n\\nalso asked the occupant of the front passenger’s side of the vehicle—a man, later\\n\\nidentified as Mr. Hargrove—to get out of the truck. Mr. Hargrove complied.\\n\\nThere was also a third person in the truck, in the back seat on the passenger’s\\n\\nside, who the agents had not originally seen. This man, later identified as Mr.\\n\\nSilvas-Hinojos, also exited the truck. The agents believed that Mr. Silvas-\\n\\nHinojos was the seventh backpacker.\\n\\n After the three occupants exited the truck, an agent noticed a bundle of\\n\\nmarijuana lying in the center of the truck’s back seat. Agents also found and\\n\\nseized more bundles of marijuana in the bed of the truck; these bundles were\\n\\npartially covered by a tarp. The government later learned (through the\\n\\ncooperation of Mr. Silvas-Hinojos) that Mr. Hargrove had received the bundles of\\n\\nmarijuana from the backpackers and strapped them down in the bed of his truck.\\n\\nIn total, the agents seized approximately 297 pounds of marijuana from the truck.\\n\\n When Mr. Hargrove exited the truck, an agent patted him down and found\\n\\ntwo knives on his person. After another agent noticed a rifle in the truck’s back\\n\\nseat, Mr. Hargrove told the agents that he had “two weapons inside the vehicle,”\\n\\nincluding the rifle. Id. at 263. The second firearm, a pistol, was found on the\\n\\ntruck’s dashboard inside a bag bearing an Oakland Raiders emblem. At the time\\n\\nof these events, Ms. Richter was wearing a jacket with an Oakland Raiders\\n\\n 4\\n\\femblem that matched the one on the bag containing the pistol. Mr. Hargrove, Ms.\\n\\nRichter, and all of the backpackers were arrested.\\n\\n After his arrest, Mr. Hargrove again “admitted the loaded rifle and pistol\\n\\nfound in his truck belonged to him.” Id., Vol. II, ¶ 8, at 5 (Presentence\\n\\nInvestigation Report (“PSR”), dated Jan. 26, 2017). The agents asked Mr.\\n\\nHargrove about the bundles of marijuana they had found in his truck, and he told\\n\\nthe agents that he believed the bundles were alfalfa, not marijuana, and that he\\n\\nwas simply in the area to go fishing.\\n\\n B\\n\\n Mr. Hargrove was charged with two counts: (1) conspiracy to distribute\\n\\nmore than 100 kilograms of marijuana in violation of 21 U.S.C. § 846; and (2)\\n\\npossession with the intent to distribute 100 kilograms or more of a mixture and\\n\\nsubstance containing a detectable amount of marijuana, and aiding and abetting\\n\\nsaid possession, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C.\\n\\n§ 2. Ms. Richter and two of the backpackers were charged with similar crimes,\\n\\nbut these three pleaded guilty pursuant to plea agreements. Mr. Hargrove\\n\\nproceeded to trial.\\n\\n 1\\n\\n Prior to trial, Mr. Hargrove filed a motion in limine requesting that the\\n\\ndistrict court exclude all evidence regarding firearms or knives, including “all\\n\\npurported testimony [that] one of the firearms [was] stolen.” Suppl. R. at 12–14\\n\\n 5\\n\\f(Mr. Hargrove’s Mot. in Lim., dated Oct. 10, 2016). This motion contended that\\n\\n“the possession of the firearms was simply part of his property” and that Mr.\\n\\n“Hargrove made no attempt to hide or distance himself from the firearms,” and it\\n\\nargued, among other things, that admitting evidence that one of the firearms was\\n\\nstolen would be unduly prejudicial. Id. at 13–14.\\n\\n The district court resolved this motion in a written order. It reasoned that\\n\\n“[t]he presence of loaded firearms that Defendant admitted belong to him, and\\n\\ntheir location in the cab of the truck[,] is probative of Defendant’s knowledge and\\n\\nof his agreement to participate in a drug trafficking scheme.” Id. at 18 (Mem. Op.\\n\\nand Order, dated Oct. 14, 2016). The court further ruled that the probative value\\n\\nof this evidence was not substantially outweighed by potential prejudice; thus, the\\n\\nevidence was admissible. But the court adopted a contrary stance regarding the\\n\\nstolen nature of one of the firearms, concluding that “the fact that one of the\\n\\nfirearms was stolen is not particularly probative of any fact at issue.” Id.\\n\\nConsequently, the court found this evidence to be inadmissible, as the risk of\\n\\nprejudice substantially outweighed any conceivable relevance. Thus, the court\\n\\ngranted the motion in part, excluding any testimony concerning the stolen nature\\n\\nof one of the firearms but allowing testimony about the presence of loaded\\n\\nfirearms in the truck.\\n\\n At trial, Mr. Hargrove’s strategy was to raise doubt regarding whether he\\n\\nknew of the drug-trafficking activity and knowingly agreed to participate in it.\\n\\n 6\\n\\fSpecifically, during opening statements, Mr. Hargrove’s counsel told the jury that\\n\\nMs. Richter “arranged this marijuana deal,” R., Vol. III, at 202, that she had\\n\\nasked to borrow Mr. Hargrove’s vehicle, id., that she told Mr. Hargrove that they\\n\\nwere going to “camp out” at a fishing hole and “hang out for a few days,” id. at\\n\\n202–03, and that Mr. Hargrove—without any knowledge of the planned drug-\\n\\ntrafficking activity—agreed to do that, id. at 203.\\n\\n However, in eliciting testimony concerning the presence of loaded firearms\\n\\nin order to undermine this defense, as authorized by the district court, the\\n\\nprosecution strayed into forbidden territory. In response to the prosecutor’s\\n\\nquestions, a Border Patrol agent testified that one of the firearms had been stolen:\\n\\n Q. Agent [], is this -- are these the two individuals that you\\n arrested that night?\\n A. Yes sir.\\n Q. And you notice [Ms. Richter] has also an Oakland Raiders\\n decal on her jacket?\\n A. Yes, yes, sir.\\n Q. Is that basically what the bag was like also with where the\\n gun was?\\n A. Yeah, it was a black bag with an Oakland Raiders emblem\\n on it.\\n Q. And the defendant, though, was the one that told you\\n where the gun was?\\n A. Yes, sir.\\n Q. Did you ever ascertain ownership of that gun?\\n A. No, sir.\\n ....\\n Q. Did you eventually ascertain ownership of the gun?\\n A. I ran records checks on both weapons and the truck, yes,\\n sir.\\n Q. And to whom did it come back to?\\n A. The truck came back to the defendant. The rifle came\\n\\n 7\\n\\f back as a clear weapon and the pistol came back as stolen.\\n\\nId. at 264–65 (emphasis added).\\n\\n Mr. Hargrove’s counsel objected and immediately moved for a mistrial,\\n\\narguing that the testimony about the stolen gun could not be “cure[d] with an\\n\\ninstruction.” Id. at 265. The district court held a hearing on the issue outside of\\n\\nthe jury’s presence. The court first asked the agent if he had been instructed not\\n\\nto testify about the stolen nature of the gun. The agent answered that he had been\\n\\ninformed to disregard the fact that the gun was stolen, but “misunderstood the\\n\\nquestion” and stated that he did not “know how to answer [the question] without\\n\\n. . . not telling the truth.” Id. at 268. The prosecutor admitted “it’s my fault,”\\n\\nconceding that he did not “frame the question correctly.” Id. Accordingly, the\\n\\ncourt concluded that the error lay with the prosecutor and that the agent was not\\n\\nto blame for the utterance. The court subsequently took the motion for a mistrial\\n\\nunder advisement. See id. at 269 (“[T]his is how I’m going to play it: I am going\\n\\nto take under advisement the motion to mistrial. I’m going to instruct the jury\\n\\nwhen they get back that they are to completely disregard the answer. And then\\n\\nI’m going to see how the testimony proceeds and -- well, we’ll see where it\\n\\ngoes.”).\\n\\n The court called the jury back into the courtroom and gave the following\\n\\ninstruction:\\n\\n Ladies and gentlemen, in the preliminary instruction this\\n\\n 8\\n\\f morning, I told you that if, at some point in the trial, I told you\\n to disregard something that you heard, then you couldn’t consider\\n that matter in your deliberations later in the trial. Well, that’s\\n happened. So right before you left for your break, there was a\\n statement made by the agent that one of the firearms may have\\n been stolen. The stolen nature of those firearms is not at issue in\\n this case. That is not something that you need to consider. In\\n fact, I’m going to ask you and expect you to disregard anything\\n regarding that firearm or its ownership. That’s not something\\n you need to concern yourself with in this trial.\\n\\n And as we talked this morning, what’s before you are the two\\n charges, conspiracy and possession with intent on the marijuana.\\n There isn’t any charge related to firearms, their ownership, and\\n it would be inappropriate for you to consider those facts in\\n addressing the facts that are actually in front of you and the\\n elements of the charges that are actually in front of you. So\\n please disregard any thought or connection relating to the\\n ownership of that firearm.\\n\\nId. at 284–85 (emphases added). Following that instruction, the trial resumed and\\n\\nthe prosecutor quickly finished his cross-examination of the agent.\\n\\n Moreover, the prosecutor took remedial measures during the remainder of\\n\\nthe trial: specifically, the prosecutor (1) withdrew an exhibit displaying all\\n\\nweapons retrieved from the truck, see id. at 25 (“[T]he government would not\\n\\noppose removing [Government’s Exhibit Number 15, i.e., a photo of the guns and\\n\\nknives] if it will help alleviate some of the damage that was done. So since the\\n\\njury hasn’t seen it, the government, without objection from defense, will\\n\\nwithdraw that exhibit.”); (2) did not seek testimony from its expert witness\\n\\nregarding the use of firearms in the narcotics trade, even though it had filed a\\n\\nnotice with the court regarding expert testimony in this area; and (3) did not\\n\\n 9\\n\\fdiscuss either of the guns during its closing argument.\\n\\n After the close of all of the evidence but prior to closing arguments, the\\n\\ndistrict court denied the motion for mistrial, concluding that the prosecutor’s\\n\\nviolation of the court’s ruling was not “intentional” but rather “was a mistake . . .\\n\\ncaused by an inartfully asked question.” Id. at 138. The court further concluded\\n\\nthat, in light of all of the evidence, the improper testimony was not\\n\\n“consequential.” Id. The defense renewed its objection after the court’s ruling\\n\\nbut seemed to agree that the prosecutor had not acted in bad faith in eliciting the\\n\\ntestimony. Id. at 139 (“Obviously, I don’t think the issue of whether it was in bad\\n\\nfaith or not is really at issue here. What’s at issue is the prejudice of the exact\\n\\nnature of the testimony that was specifically excluded that came in. And it is of\\n\\nsuch nature that the only fair remedy to this proceeding would be to declare a\\n\\nmistrial.”).\\n\\n Then, after the closing arguments, the court again instructed the jury:\\n\\n During the trial, I didn’t let you hear answers to some of the\\n questions that the lawyers asked and sometimes I ordered you to\\n disregard things you saw or heard or I struck things from the\\n record. You must completely ignore all of those things. Don’t\\n even think about them. Don’t speculate about what a witness\\n might have said. These things are not evidence and you’re bound\\n by your oath not to let them influence your decision in any way.\\n\\nId. at 144. After approximately one hour of deliberation, the jury found Mr.\\n\\nHargrove guilty on both counts.\\n\\n 2\\n\\n 10\\n\\f Following Mr. Hargrove’s conviction, the U.S. Probation Office prepared a\\n\\nPSR noting that the mandatory-minimum sentence was sixty months’\\n\\nimprisonment and computing an advisory Guidelines sentencing range of sixty to\\n\\nsixty-three months’ imprisonment. Id., Vol. II, at 1–15 (PSR, dated Jan. 26,\\n\\n2017). 2\\n\\n In his Sentencing Memorandum and Objections to the PSR, Mr. Hargrove\\n\\nargued that he qualified for the safety valve under U.S.S.G. § 5C1.2 and,\\n\\ntherefore, his sentence should have been calculated without regard to the\\n\\notherwise-applicable mandatory minimum. 3 See id., Vol. I, at 40–42\\n\\n 2\\n The Probation Office used the 2016 edition of the Guidelines in\\ncalculating Mr. Hargrove’s sentence. Neither party questions this choice on\\nappeal; therefore, we also rely on the 2016 edition, to the extent that it is relevant\\nto the resolution of the issues on appeal.\\n 3\\n The Guidelines safety-valve provision (i.e., § 5C1.2) traces back to a\\nstatutory safety-valve provision that Congress had enacted, 18 U.S.C. § 3553(f);\\nthis provision permits a district court to disregard the otherwise applicable\\nstatutory mandatory minimum and to sentence a defendant in accordance with the\\nadvisory Guidelines and the sentencing factors of 18 U.S.C. § 3553(a). See, e.g.,\\nUnited States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008) (“Section 3553(a)\\nmandates consideration of its enumerated factors . . . .”); United States v.\\nAltamirano-Quintero, 511 F.3d 1087, 1091 (10th Cir. 2007) (noting that the\\nstatutory safety-valve provision “permits the district court to disregard a statutory\\nmandatory minimum sentence and instead impose a sentence within the advisory\\nsentencing guidelines range”); United States v. Acosta-Olivas, 71 F.3d 375, 379\\n(10th Cir. 1995) (“In sum, § 3553(f), as repeated in guideline [U.S.S.G.] § 5C1.2,\\nwas clearly intended to permit courts to sentence relatively less culpable\\noffenders to sentences below an otherwise applicable mandatory statutory\\nminimum sentence.”). In U.S.S.G. § 5C1.2, not only has the Sentencing\\nCommission “set[] forth the relevant provisions” of § 3553(f), but it also “has\\npromulgated application notes to provide guidance in the application of the\\n (continued...)\\n\\n 11\\n\\f(Sentencing Mem. & Objs. to PSR, dated Apr. 24, 2017). In particular, Mr.\\n\\nHargrove disputed whether he had “possess[ed] a firearm or other dangerous\\n\\nweapon . . . in connection with the offense.” U.S.S.G. § 5C1.2(a)(2). Mr.\\n\\nHargrove asserted that there was no evidence that the firearms’ presence “had\\n\\nanything to do with the marijuana transaction”; consequently, Mr. Hargrove\\n\\nreasoned that he was eligible for safety-valve relief under § 5C1.2. R., Vol. I, at\\n\\n41. After making other arguments for the application of reductions and a\\n\\nvariance, Mr. Hargrove requested a sentence of eighteen months’ imprisonment.\\n\\n During the first of two sentencing hearings, Mr. Hargrove’s counsel argued\\n\\nthat the transaction resulting in his arrest was not a “typical drug situation” that\\n\\nwas “real dangerous” because money was not exchanged between the backpackers\\n\\nand the individual picking up the drugs. Id., Vol. III, at 7 (Sentencing Hr’g Tr.,\\n\\ndated May 4, 2017). He thus reasoned that Mr. Hargrove would not have needed\\n\\nto bring a firearm for protection. The district court rejected this argument, noting\\n\\n\\n 3\\n (...continued)\\nstatute.” U.S.S.G. § 5C1.2, cmt. background. Mr. Hargrove’s safety-valve\\nargument before the district court was consistently framed in terms of the\\nGuidelines provision, § 5C1.2. Though his opening brief is sprinkled with several\\ncitations to the statutory safety-valve provision, § 3553(f), Mr. Hargrove also\\nprimarily invokes the rubric of § 5C1.2 in stating his appellate challenge. Aplt.’s\\nOpening Br. at 1 (stating the issue for review as whether “Mr. Hargrove\\npossess[ed] a firearm in connection with the offenses of which he was convicted,\\nsuch that he was ineligible for the safety valve under [U.S.S.G.] § 5C1.2?”).\\nGiven that the Guidelines safety-valve provision restates verbatim the relevant\\ntext of the statutory safety-valve provision, Mr. Hargrove’s litigation decision on\\nthis point is of no moment in our analysis.\\n\\n 12\\n\\fthat “[i]f I’m going to my first big drug deal in Rodeo -- in a farm outside Rodeo,\\n\\nNew Mexico, in the dark of the night with a bunch of guys, backpackers, coming\\n\\nover the hill, I might think I needed to be protected.” Id. at 8. Mr. Hargrove’s\\n\\ncounsel also argued that the weapons were unrelated to the offense, as many\\n\\nindividuals in remote areas carry weapons because of “snakes,” “varmints,” and\\n\\n“things of that nature.” Id. at 9. The court, however, expressed skepticism,\\n\\nquestioning “[h]ow many of those [weapons used as protection against animals]\\n\\n[we]re stolen,” like one of Mr. Hargrove’s guns. Id. Because of the potential for\\n\\na “big swing” based on the application vel non of the safety valve, the court\\n\\nrecessed for further research on how to treat the firearms. Id. at 16.\\n\\n In a written order, the district court denied Mr. Hargrove safety-valve\\n\\nrelief. Specifically, the district court stated: “The only question at issue is\\n\\nwhether [Mr. Hargrove] possessed the firearms ‘in connection with the offense.’”\\n\\nId., Vol. I, at 23 (Mem. Op. and Order, dated May 25, 2017) (quoting 18 U.S.C.\\n\\n§ 3553(f)). The district court recited the relevant facts: Mr. Hargrove and both\\n\\nguns were found in the cab of the truck, and most of the marijuana was found\\n\\nclose by in the truck’s bed; both guns were loaded; and Mr. Hargrove evinced\\n\\nknowledge of the location of the guns by voluntarily telling the agents about\\n\\nthem. The district court concluded that “[b]oth [the] proximity and the potential\\n\\n[of the weapons] to facilitate the offense” established that the weapons were\\n\\npossessed “in connection with the offense.” Id. at 23–24. The court further\\n\\n\\n 13\\n\\freasoned that “[e]ven if the firearms did not directly facilitate the drug\\n\\ntransaction, they certainly had the potential to do so.” Id. at 24. The court\\n\\nconcluded: “Under these circumstances, Defendant has not met his burden by a\\n\\npreponderance of the evidence to demonstrate eligibility for the safety valve.\\n\\nThus, Defendant is subject to the statutory mandatory minimum sentence of 60\\n\\nmonths.” Id.\\n\\n The court then held a second sentencing hearing. During his allocution,\\n\\nMr. Hargrove stated: “I had my guns with me ‘cause I was going to work and I\\n\\nmight come across a rattlesnake.” Id., Vol. III, at 324 (Sentencing Hr’g Tr., dated\\n\\nJune 7, 2017). He further stated that at the time of his arrest he “was four and a\\n\\nhalf feet away from [his] weapon.” Id. at 327. The district court subsequently\\n\\nsentenced Mr. Hargrove to sixty months’ imprisonment, the applicable\\n\\nmandatory-minimum sentence. Mr. Hargrove now appeals.\\n\\n II\\n\\n We are presented with two issues in this appeal: (1) whether the district\\n\\ncourt erred in failing to grant Mr. Hargrove’s motion for a mistrial after the\\n\\nBorder Patrol agent testified about the stolen nature of Mr. Hargrove’s pistol, and\\n\\n(2) whether the district court erred in failing to grant Mr. Hargrove safety-valve\\n\\nrelief under U.S.S.G. § 5C1.2. Because we conclude that the district court did not\\n\\nerr with respect to either issue, we affirm the court’s judgment as to Mr.\\n\\nHargrove’s conviction and sentence.\\n\\n\\n 14\\n\\f A\\n\\n We first address Mr. Hargrove’s assertion that the district court erred by\\n\\ndenying his motion for a mistrial after the Border Patrol agent testified that the\\n\\npistol in Mr. Hargrove’s car was stolen, in direct contravention of the district\\n\\ncourt’s ruling in limine. As discussed below, we conclude that Mr. Hargrove’s\\n\\narguments in support of this assertion are unavailing.\\n\\n “We review a district court’s refusal to grant a mistrial for abuse of\\n\\ndiscretion. The district court has discretion to grant a mistrial only when a\\n\\ndefendant’s right to a fair and impartial trial has been impaired.” United States v.\\n\\nMeridyth, 364 F.3d 1181, 1183 (10th Cir. 2004) (citation omitted). “This calculus\\n\\ncalls for ‘an examination of the prejudicial impact of an error . . . viewed in the\\n\\ncontext of an entire case.’” United States v. Wells, 739 F.3d 511, 532 (10th Cir.\\n\\n2014) (quoting Meridyth, 364 F.3d at 1183). “While there are ‘cases where the\\n\\nprejudicial effect cannot be erased because the evidence is of such a nature that it\\n\\nnecessarily interferes with the jury’s impartial consideration of other evidence,’\\n\\n‘[t]he general rule is that the effect of improper evidence may be remedied by\\n\\nadmonishing the jury to disregard and by withdrawing the evidence.’” Id. at 533\\n\\n(alteration in original) (quoting United States v. Laymon, 621 F.2d 1051, 1053\\n\\n(10th Cir. 1980)).\\n\\n “Under the abuse of discretion standard, a trial court’s decision will not be\\n\\ndisturbed unless the appellate court has a definite and firm conviction that the\\n\\n\\n 15\\n\\flower court has made a clear error of judgment or exceeded the bounds of\\n\\npermissible choice in the circumstances.” United States v. Chanthadara, 230 F.3d\\n\\n1237, 1248 (10th Cir. 2000) (quoting United States v. Thompson, 908 F.2d 648,\\n\\n650 (10th Cir. 1990)). Or, put another way, “[w]e will not disturb a district\\n\\ncourt’s decision to deny a motion for a mistrial unless the decision ‘was based on\\n\\na clearly erroneous finding of fact or an erroneous conclusion of law or manifests\\n\\na clear error of judgment.’” United States v. Templeman, 481 F.3d 1263, 1265\\n\\n(10th Cir. 2007) (quoting United States v. Stiger, 413 F.3d 1185, 1194 (10th Cir.\\n\\n2005), abrogated in part on other grounds by Alleyne v. United States, 570 U.S.\\n\\n99, 108 (2013)).\\n\\n In determining whether a mistrial is necessary “where the prosecutor asked\\n\\na question her witness answered in a potentially improper way,” the\\n\\nnonexhaustive set of factors that we consider “include”: (1) whether the\\n\\nprosecutor acted in bad faith, (2) whether the district court limited the effect of\\n\\nthe improper statement through its instructions to the jury, and (3) whether the\\n\\nimproper remark was inconsequential in light of the other evidence of the\\n\\ndefendant’s guilt. Meridyth, 364 F.3d at 1183. Here, all three factors weigh in\\n\\nfavor of affirming the district court’s decision.\\n\\n 1\\n\\n The parties first dispute whether the prosecutor acted in bad faith in\\n\\neliciting the Border Patrol agent’s improper testimony about the stolen gun. The\\n\\n\\n 16\\n\\fdistrict court found no bad faith by the prosecutor, specifically ruling that the\\n\\nprosecutor did not act in an “intentional” manner in eliciting the improper\\n\\ntestimony but, rather, made “a mistake,” and that the testimony was “caused by an\\n\\ninartfully asked question.” R., Vol. III, at 138. We conclude that the district\\n\\ncourt’s assessment was firmly grounded in the record evidence and legally sound.\\n\\n We primarily rest our conclusion on two variables that our caselaw has\\n\\ndeemed to be significant in the bad-faith inquiry. 4 First, we have inquired\\n\\nwhether “the prosecutor . . . intentionally elicit[ed] the statement in question.”\\n\\nMeridyth, 364 F.3d at 1184; see United States v. Kamahele, 748 F.3d 984, 1017\\n\\n(10th Cir. 2014) (discerning no bad faith in part because “[t]he mistake\\n\\nappear[ed] to be innocent”). And, second, we have noted whether the prosecutor\\n\\nacknowledged the improper character of the testimony and took steps to mitigate\\n\\nits prejudicial effects. See Wells, 739 F.3d at 533 (affirming denial of a motion\\n\\n 4\\n During oral argument on the motion for mistrial before the district\\ncourt, Mr. Hargrove’s trial counsel seemed to concede that the prosecutor did not\\nact in bad faith. See R., Vol. III, at 139 (“Obviously, I don’t think the issue of\\nwhether it was in bad faith or not is really at issue here. What’s at issue is the\\nprejudice of the exact nature of the testimony that was specifically excluded that\\ncame in.”). The government acknowledges this apparent concession here but does\\nnot argue that it is dispositive. See Aplee.’s Resp. Br. at 24 (“Contrary to\\nHargrove’s assertion of bad faith on appeal, as Hargrove’s trial counsel\\nacknowledged and as the district court found, the government did not act in bad\\nfaith in asking the questions that it did.”). In light of the government’s approach,\\nwe are content to accord the apparent concession of Mr. Hargrove’s counsel on\\nthe bad-faith issue little weight in our analysis, though it is not irrelevant. It is\\nsimply noteworthy in passing that Mr. Hargrove’s trial counsel, who saw the\\nprosecutor’s questioning of the agent in real time—just as the trial judge did—did\\nnot at that time view the prosecution’s conduct as evidencing bad faith.\\n\\n 17\\n\\ffor mistrial in part because the “prosecutor attempted to change the subject\\n\\nimmediately after” the inappropriate testimony); cf. Meridyth, 364 F.3d at 1184\\n\\n(noting that the prosecutor’s failure to fully acknowledge the improper nature of\\n\\nthe testimony “somewhat belied” her “ostensibly innocent explanation” for\\n\\neliciting the testimony).\\n\\n Turning to the first variable, though it is undisputed that the prosecutor’s\\n\\nquestions elicited the improper, stolen-gun testimony, the district court did not\\n\\nclearly err in finding that the prosecutor did so inadvertently (i.e., by mistake),\\n\\nnot with bad intent. See Meridyth, 364 F.3d at 1184. The Border Patrol agent\\n\\nstated that the prosecutor told him not to testify about the stolen nature of the\\n\\ngun. See R., Vol. III, at 268. The fact that the prosecutor specifically instructed\\n\\nthe agent not to testify about the stolen nature of the gun significantly undermines\\n\\nany notion that the prosecutor’s intent was to put the improper testimony before\\n\\nthe jury. See Kamahele, 748 F.3d at 1017 (concluding that the prosecutor’s\\n\\n“mistake appear[ed] to be innocent [because] the prosecutor informed the district\\n\\ncourt that she had previously instructed the witness not to discuss” the improper\\n\\ntestimony).\\n\\n In response, Mr. Hargrove points to the fact—ostensibly suggestive of ill\\n\\nintent—that the prosecutor repeatedly inquired about the ownership of the gun\\n\\nbefore the agent uttered the improper testimony. But, at least under the\\n\\ncircumstances here, this tells us virtually nothing about whether the prosecutor\\n\\n\\n 18\\n\\facted with bad intent or was simply careless and persistently so.\\n\\n And, in this factual setting, we view the second variable—the prosecutor’s\\n\\nconduct in acknowledging the improper character of the testimony and taking\\n\\nsteps to mitigate its prejudicial effects—as strongly indicating that the prosecutor\\n\\ndid not act in bad faith. First, in the immediate aftermath of the improper\\n\\ntestimony, the prosecutor admitted that his questioning was unclear and that he\\n\\nwas at fault for causing the testimony to be uttered. See R., Vol. III, at 268 (“I\\n\\nthink it’s my fault because I didn’t ask [the pertinent questions] clear[ly] enough.\\n\\nBut I didn’t intend to violate the order. I just didn’t -- I didn’t frame the question\\n\\ncorrectly.”). This immediate acceptance of responsibility—while certainly not\\n\\ndispositive—provides some support for the conclusion that “the prosecutor did\\n\\nnot intentionally elicit the statement in question.” Meridyth, 364 F.3d at 1184.\\n\\nIndeed, the prosecutor’s conduct here contrasts markedly with the prosecutor’s\\n\\nconduct in Meridyth. There, instead of immediately accepting responsibility for\\n\\nadducing the improper testimony, the prosecutor spent much of her “response to\\n\\nthe motion for a mistrial” trying to convince the court that there actually was an\\n\\nevidentiary basis for the introduction of the testimony; the prosecutor could\\n\\nreasonably be understood from this line of argument as saying that, even if she did\\n\\nintend to adduce the testimony, her conduct would not have been improper. Id.\\n\\nWe concluded in Meridyth that the prosecutor’s approach “somewhat belied” her\\n\\n“ostensibly innocent explanation,” which was based on the view that she did not\\n\\n\\n 19\\n\\factually intend to adduce the testimony. Id. In short, the prosecutor’s immediate\\n\\nacceptance of responsibility here is significantly probative of the prosecutor’s\\n\\nlack of bad faith.\\n\\n We view in a similar light the prosecutor’s efforts to mitigate the\\n\\nprejudicial effects of the improper testimony throughout the remainder of the\\n\\ntrial. Once he resumed the examination of the agent (i.e., following the improper\\n\\nutterance), the prosecutor immediately veered his questioning away from the\\n\\nstolen gun and began inquiring about other issues; he thereafter quickly ended his\\n\\nexamination of the agent:\\n\\n Q. Agent [], did you find any binoculars in the vehicle?\\n A. There was a set of night-vision goggles inside the vehicle.\\n Q. Where in the vehicle were they?\\n A. I don’t recall. I did not locate them, myself.\\n [Prosecutor]: I’ll pass the witness, Your Honor.\\n\\nR., Vol. III, at 285. Such a dramatic shift supports the district court’s finding that\\n\\nthe prosecutor did not intend to put the improper testimony before the jury in the\\n\\nfirst place. See Wells, 739 F.3d at 533. Furthermore, moving past the immediate\\n\\naftermath of the improper testimony, the prosecution went to great lengths to limit\\n\\nany damage caused by the testimony by taking the following steps: (1)\\n\\nwithdrawing an exhibit that displayed all of the weapons retrieved from the truck;\\n\\n(2) forgoing testimony from its expert witness regarding the use of firearms by\\n\\ndrug traffickers to safeguard their narcotics loads, even though it had given notice\\n\\nof expert testimony to this effect; and (3) avoiding any discussion of the guns\\n\\n\\n 20\\n\\fduring its closing argument. In sum, the prosecutor’s actions—both immediately\\n\\nafter eliciting the improper testimony and throughout the remainder of the\\n\\ntrial—clearly evince a strong intent to mitigate any prejudicial effects of the\\n\\nimproper testimony, rather than an intent to highlight or cement such effects.\\n\\nSuch remedial efforts strongly suggest that the prosecution did not intend to elicit\\n\\nthe improper testimony to begin with.\\n\\n To be sure, we noted in Meridyth that one of the “helpful” inquiries\\n\\n“subsumed within the ‘bad faith’ factor” is whether the prosecutor’s “line of\\n\\nquestioning was reasonable.” 364 F.3d at 1183 n.3. Mr. Hargrove underscores\\n\\nthis point, arguing that “there was no reason for this [i.e., the prosecutor’s] line of\\n\\nquestioning” and that “the line of questioning was wholly unreasonable.” Aplt.’s\\n\\nOpening Br. at 27–28. In response, the government contends that the prosecutor’s\\n\\nquestioning was designed (albeit inartfully) to establish that Mr. Hargrove had\\n\\nclaimed ownership of the firearms, in order (1) to show that he was aware of the\\n\\ndrug transaction that was going on, and (2) to avoid the jury drawing an incorrect\\n\\ninference from the testimony that immediately preceded the ownership line of\\n\\nquestioning—that is, testimony about Ms. Richter wearing an Oakland Raiders\\n\\njacket with an emblem that matched the one on the Oakland Raiders bag\\n\\ncontaining the pistol. More specifically, the government contends that the\\n\\nprosecutor apparently reasoned that “the jury could have inferred [wrongly from\\n\\nthe fact that the bag displayed the same Oakland Raiders emblem as Ms. Richter’s\\n\\n\\n 21\\n\\fjacket] that it was Richter’s bag and Richter’s firearm, even though Hargrove was\\n\\naware of the location of the firearm.” Aplee.’s Resp. Br. at 20. Accordingly, the\\n\\ngovernment argues that the testimony was relevant to undermine Mr. Hargrove’s\\n\\ndefense theory that Ms. Richter planned the entire event and that he agreed to go\\n\\nalong on the trip with lawful purposes in mind, without knowledge of the drug-\\n\\ntrafficking activity.\\n\\n On this specific point, however, we are not persuaded by the government’s\\n\\nargument. Recall that, among other things, the prosecutor asked the agent with\\n\\nrespect to the pistol: “Did you ever ascertain ownership of that gun?” and “[T]o\\n\\nwhom did it come back to?” R., Vol. III, at 264–65. Under these circumstances,\\n\\nwe are hard-pressed to discern the relevancy of any testimony regarding the legal\\n\\nownership of the pistol. Indeed, if the prosecutor just wanted to establish for the\\n\\njury that it was Mr. Hargrove—not Ms. Richter—who possessed the pistol and\\n\\nbrought it to the drug transaction (with the attendant inference that Mr. Hargrove\\n\\nknew drug-trafficking activity was going on and needed the firearm to protect it),\\n\\nthe prosecutor could have simply asked the agent if he knew whether anyone laid\\n\\nclaim to the pistol during the arrests and investigation of the crime. And the\\n\\nagent almost certainly would have responded that Mr. Hargrove did so.\\n\\n Based on the foregoing, we therefore do not find the government’s\\n\\nargument regarding the reasonableness of its line of questioning persuasive.\\n\\nHowever, the prosecution can act unreasonably without acting in bad faith. Given\\n\\n\\n 22\\n\\fthe totality of the circumstances here, we reject Mr. Hargrove’s suggestion that\\n\\nthis one factor “weighs heavily in favor of a finding that the Government acted in\\n\\nbad faith.” Aplt.’s Opening Br. at 28. As noted, the district court’s finding that\\n\\nthe prosecutor elicited the improper testimony through inadvertence—rather than\\n\\nintentionally—is firmly supported by the record, and the prosecutor’s conduct in\\n\\npromptly acknowledging the improper character of the testimony and taking steps\\n\\nto mitigate its prejudicial effects strongly supports the conclusion that the\\n\\nprosecutor did not act at the outset in bad faith in eliciting the improper\\n\\ntestimony. In light of these circumstances, we feel confident in rejecting any\\n\\nsuggestion that the prosecutor’s questioning amounted to “a gratuitous attempt to\\n\\nimproperly influence the jury” through placing improper testimony before it about\\n\\nthe stolen nature of the pistol. Meridyth, 364 F.3d at 1184. More generally,\\n\\nconsidering all of the circumstances, we conclude that the prosecutor did not act\\n\\nin bad faith, and that this criterion weighs heavily in the government’s favor.\\n\\n 2\\n\\n We next consider whether the district court’s instructions following the\\n\\ntestimony about the stolen gun “limited the effect of the improper statement . . .\\n\\nto the jury.” Meridyth, 364 F.3d at 1183. We conclude that this factor also\\n\\nweighs heavily in the government’s favor.\\n\\n We presume that jurors “follow their instructions.” Id. at 1184; United\\n\\nStates v. Lamy, 521 F.3d 1257, 1266 (10th Cir. 2008) (“We presume that jurors\\n\\n\\n 23\\n\\fwill follow clear instructions to disregard evidence . . . .” (quoting United States\\n\\nv. Caballero, 277 F.3d 1235, 1243 (10th Cir. 2002))). However, this presumption\\n\\nmay be overcome: “[W]here the character of the testimony is such that it will\\n\\ncreate so strong an impression on the minds of the jurors that they will be unable\\n\\nto disregard it in their consideration of the case, although admonished to do so, a\\n\\nmistrial should be ordered.” Maestas v. United States, 341 F.2d 493, 496 (10th\\n\\nCir. 1965); see also Lamy, 521 F.3d at 1266 (noting that the presumption applies\\n\\n“unless there is an overwhelming probability that the jury will be unable to follow\\n\\nthe court’s instructions, and a strong likelihood that the effect of the evidence\\n\\nwould be devastating to the defendant” (quoting Caballero, 277 F.3d at 1243)).\\n\\n Mr. Hargrove contends that the agent’s improper testimony made the “sort\\n\\nof strong impression” described in Maestas, Aplt.’s Opening Br. at 31, but his\\n\\nassertions on this issue are entirely conclusory. He vaguely references his\\n\\nopening brief’s “discussion of the third factor” (i.e., of whether the agent’s\\n\\ntestimony was inconsequential), id., without ever mentioning what components of\\n\\nthis discussion are relevant under Maestas. Indeed, he never again mentions\\n\\nMaestas, nor does he discuss its facts or analyze what “character of . . .\\n\\ntestimony” is necessary to give rise to the kind of “strong impression” that a jury\\n\\nmight be unable to disregard. Maestas, 341 F.2d at 496. Therefore, we view Mr.\\n\\nHargrove’s contention as waived. See, e.g., United States v. Pursley, 577 F.3d\\n\\n1204, 1231 n.17 (10th Cir. 2009) (noting that a “skeletal reference does not\\n\\n\\n 24\\n\\fpresent a cognizable issue for appellate review”); accord United States v. Gordon,\\n\\n710 F.3d 1124, 1144 n.22 (10th Cir. 2013). And we properly turn our attention to\\n\\nassessing the import of the district court’s instructions, which we presume the\\n\\njury followed.\\n\\n As noted above, the district court gave two limiting instructions, one\\n\\ndirectly in the wake of the improper testimony and one after the close of\\n\\nevidence. In brief, in its instructions, the court told the jury both (1) to disregard\\n\\nthe specific testimony about the stolen nature of the pistol, and (2) to completely\\n\\nignore any and all inferences regarding the pistol—with the clear aim of giving\\n\\nthe agent’s testimony no influence in the jury’s decision-making. In other words,\\n\\nthe court effectively instructed the jurors to act as if they had never heard the\\n\\nstolen-gun testimony and to avoid thinking about that testimony.\\n\\n Despite the seeming clarity of those instructions, Mr. Hargrove asserts that\\n\\nthe district court’s approach was inadequate because the court did not\\n\\n“specifically and expressly indicate[]” that the jury should not reach the\\n\\n“potential conclusion” that “by virtue of possessing a stolen gun, Mr. Hargrove’s\\n\\ncharacter was that of a criminal and he had a propensity to commit criminal acts.”\\n\\nAplt.’s Opening Br. at 29. He further contends that the court should have “also\\n\\nspecifically instruct[ed] the jury to refrain from considering the evidence as proof\\n\\nof [his] criminal propensity.” Aplt.’s Reply Br. at 8. In support of his position,\\n\\nMr. Hargrove cites to both Meridyth and United States v. Hardwell, 80 F.3d 1471\\n\\n\\n 25\\n\\f(10th Cir.), modified in part on reh’g, 88 F.3d 897 (10th Cir. 1996). However,\\n\\nneither of those cases supports his position.\\n\\n More specifically, Mr. Hargrove argues that the district court’s instructions\\n\\nin this case were “confusing and not particular enough” when compared to the\\n\\ndistrict court’s instructions in Meridyth because they did not specify which\\n\\ninference the jury could not make—viz., it could not infer from the stolen nature\\n\\nof the gun that Mr. Hargrove had a propensity towards crime. Aplt.’s Opening\\n\\nBr. at 29. In Meridyth, the panel observed that, after testimony was elicited from\\n\\nwhich the jury could have inferred that the defendant threatened a witness, the\\n\\ndistrict court “took great pains to instruct the jury not to infer” that such a threat\\n\\nhad taken place and that the effect of such instructions “in th[at] case” was to\\n\\n“preclude the improper inference” of the threat. 5 Meridyth, 364 F.3d at 1184.\\n\\n 5\\n To provide helpful context, we reproduce below the salient aspects of\\nthe district court’s instructions quoted in Meridyth:\\n\\n After an exhaustive discussion with counsel and my own\\n examination of this witness out of your hearing, I have\\n determined a couple of things.\\n\\n First, it appears that the United States Attorney asked the\\n question regarding why this witness moved to, in part, explain\\n why the United States Government, through the United States\\n Attorney’s Office, has provided $1000 in assistance for this\\n individual to move. You will recall that the witness said he\\n moved because of threats made against him.\\n\\n In part, an inference that you could draw from that statement was\\n that the threats were made by [a co-defendant] and Mr. Meridyth.\\n (continued...)\\n\\n 26\\n\\fJuxtaposed with the Meridyth court’s specific instructions, Mr. Hargrove\\n\\nmaintains, the district court’s instructions here were inadequate. We disagree.\\n\\n The district court’s instructions here actually had a broader prophylactic\\n\\nscope than the ones in Meridyth; they necessarily reached not only the specific\\n\\ninference relating to the stolen-gun that concerned Mr. Hargrove—i.e., the\\n\\ninference that he possessed a criminal propensity—but each and every other\\n\\ninference relating to the testimony about the gun. Recall that the court explicitly\\n\\nand unequivocally instructed the jury to “to disregard anything regarding that\\n\\nfirearm or its ownership.” R., Vol. III, at 284 (emphasis added). Anything means\\n\\nanything. More specifically, anything would include any criminal-propensity\\n\\ninferences stemming from the stolen nature of the gun. Moreover, the court did\\n\\nnot take any chances that the jury might not comprehend its all-encompassing\\n\\ninstructions that the jury should put out of mind any inferences related to the\\n\\n\\n\\n 5\\n (...continued)\\n I am telling you now that that would be an improper inference,\\n based on all of the information I now know. You will recall that\\n this witness was working on at least 40 cases with the drug task\\n force. That gives this witness ample opportunity to make a lot of\\n enemies.\\n\\n While I have no reason to doubt that—the likelihood that what\\n motivated him to move were threats, it can’t be said, based on\\n any credible evidence now known to the Court that those threats\\n can be connected to these defendants. And you may not infer that\\n they do, based on the evidence we now have.\\n\\n364 F.3d at 1182–83 (quoting the record).\\n\\n 27\\n\\fstolen firearm—including possible inferences regarding Mr. Hargrove’s criminal\\n\\npropensities. The court expressly and specifically emphasized that the jury was\\n\\nnot to consider “a statement made by the agent that one of the firearms may have\\n\\nbeen stolen.” Id. Thus, based on the court’s instructions, we presume the jury\\n\\nunderstood that it was obliged not to consider any inferences based on the\\n\\ntestimony about the stolen firearm; this would necessarily include an inference\\n\\nthat Mr. Hargrove possessed a criminal propensity because the pistol was stolen. 6\\n\\n Mr. Hargrove’s only retort to this seems to be that the instructions were\\n\\n“confusing” because they “appear[ed] to only indicate that the testimony . . .\\n\\ncould not be used to find Mr. Hargrove guilty of the charged offenses.” Aplt.’s\\n\\nOpening Br. at 29. Mr. Hargrove is correct that the court’s instructions\\n\\n\\n\\n 6\\n Our decision in Wells, moreover, underscores the adequacy of the\\ncourt’s instructions. There, the subject of the defendant’s motion for mistrial was\\na witness’s improper testimony that prior to trial the defendant had been offered\\n“a plea offer” (which he presumably rejected). 739 F.3d at 532. In upholding the\\ndistrict court’s denial of the motion, we observed that the court’s “curative\\ninstruction . . . was ‘clear and concise and pertained to testimonial evidence from\\na single witness that was amenable to easy segregation in the minds of the jury.’”\\nId. at 533 (quoting Caballero, 277 F.3d at 1243). Yet, that instruction simply\\nstated: “Ladies and gentlemen, disregard that last answer. I’ll strike it from the\\nrecord. We’re getting into an area that’s not proper for jury consideration.” Id. at\\n532. Recognizing (as we do) that the adequacy of instructions must be\\nunderstood in light of all of the circumstances of a particular case, it nevertheless\\nwould strain credulity to believe that, after endorsing this brief curative\\ninstruction in Wells, this court should conclude here that the district court’s\\nbroadly protective instructions—that obliged the jury to completely disregard the\\nstolen-gun testimony and any inferences related to it—were not sufficiently clear\\nor otherwise adequate to cure any prejudice. Notably, Mr. Hargrove’s reply brief\\ndoes not respond to the government’s similar argument based on Wells.\\n\\n 28\\n\\fspecifically cautioned the jury that the stolen-gun testimony was not relevant to\\n\\nits consideration of the charged crimes:\\n\\n [W]hat’s before you are the two charges, conspiracy and\\n possession with intent on the marijuana. There isn’t any charge\\n related to firearms, their ownership, and it would be\\n inappropriate for you to consider those facts in addressing the\\n facts that are actually in front of you and the elements of the\\n charges that are actually in front of you.\\n\\nR., Vol. III, at 284. But in virtually the same breath the court spoke more\\n\\nbroadly, saying “please disregard any thought or connection relating to the\\n\\nownership of that firearm.” Id. at 284–85 (emphasis added). And this advisement\\n\\nmust be read in the context of court’s earlier instructions to the jury, which made\\n\\nplain that it must “disregard anything regarding that firearm or its ownership.”\\n\\nId. at 284 (emphasis added). Thus, the district court’s instructions here actually\\n\\ncast a wider protective net than the ones that we approved of in Meridyth.\\n\\nCaptured within this net was precisely the concern that Mr. Hargrove points to\\n\\nhere—viz., the concern that the jury might infer that he had criminal propensities\\n\\nfrom the stolen nature of the firearm. Taking all of these instructions into\\n\\naccount, we are hard-pressed to understand how a reasonable jury could have not\\n\\nunderstood that, not only could it not consider the stolen-gun testimony in finding\\n\\nhim guilty of the charged offenses, but it also could not use this testimony for any\\n\\npurpose. 7 In sum, Mr. Hargrove’s arguments based on the trial court’s\\n\\n 7\\n In any event, we question what material prejudice Mr. Hargrove\\n (continued...)\\n\\n 29\\n\\finstructions in Meridyth are unavailing.\\n\\n Lastly, Mr. Hargrove’s reliance on our decision in Hardwell is another\\n\\nwrong note in Mr. Hargrove’s tune of criminal-propensity error, which we may\\n\\naddress in short order. Specifically, Mr. Hargrove turns to Hardwell to support\\n\\nhis contention that the district court erred by not sua sponte specifically\\n\\ninstructing the jury to disregard any inference arising from the stolen-gun\\n\\ntestimony that Mr. Hargrove had a propensity to commit crimes. In this regard,\\n\\nquoting from Hardwell, 80 F.3d at 1491, Mr. Hargrove notes that we have\\n\\n“previously held that a district court committed error by failing to advise the jury\\n\\n. . . in a limiting instruction” that prior uncharged misconduct cannot be used as\\n\\nproof of criminal propensity. See Aplt.’s Opening Br. at 30 (quoting Hardwell’s\\n\\nobservation that “the court’s instructions did not expressly advise the jury that it\\n\\ncould not consider prior misconduct as proof of criminal disposition or\\n\\npropensity, which is what Rule 404(b) is intended to prevent”).\\n\\n However, Hardwell is inapposite: it expressly relates to a district court’s\\n\\n\\n\\n 7\\n (...continued)\\ncould claim even if the jury did feel free to infer from the stolen gun-testimony\\nthat he had criminal propensities, so long as it also felt obliged to honor the\\ncourt’s instructions not to use this inference in determining whether he was guilty\\nof the charged offenses. Put another way, even if the court’s instructions gave the\\njury the leeway (which they did not) to infer from the stolen-gun testimony that\\nMr. Hargrove had tendencies to be a scofflaw, it is hard to see how Mr. Hargrove\\ncould have been materially prejudiced by such an inference, if the jury stayed true\\nto the court’s instructions and did not use this inference in determining his guilt\\nof the charged offenses.\\n\\n 30\\n\\ffailure to employ appropriate limiting instructions in admitting prior wrongful-\\n\\nacts evidence under Federal Rule of Evidence 404(b), and on appeal “[a]ll four\\n\\ndefendants contend[ed] the trial court abused its discretion by admitting evidence\\n\\nof prior bad acts” under that rule. 80 F.3d at 1488. The evidence before the jury\\n\\nwas admissible for some purposes, but not others. Id. at 1491 (“[A]lthough it\\n\\ncould consider the evidence of Dennis’ and Marcel’s prior misconduct as proof of\\n\\nthe money laundering charge and 1992 cocaine sale charges, it could not consider\\n\\nthat evidence as proof of the conspiracy, except to the extent that it proved\\n\\nintent.”). Here, on the other hand, the district court did not admit the disputed\\n\\ntestimony for any purpose; it expressly excluded it. Therefore, there was no need\\n\\nfor the court to even consider providing a more specific limiting instruction\\n\\nregarding the testimony, as in Hardwell. Under the district court’s instructions,\\n\\nthe jury could not consider the stolen-gun testimony for any purpose—full stop.\\n\\nHardwell is thus inapposite.\\n\\n Accordingly, because the district court’s instructions unequivocally\\n\\nadmonished the jury that it could not consider the testimony or any inferences\\n\\nstemming from it, and because it is permissible to presume here that the jurors\\n\\nfollowed the court’s instructions, see Lamy, 521 F.3d at 1266, this factor weighs\\n\\nheavily in the government’s favor.\\n\\n 3\\n\\n Finally, we consider whether the improper remark was inconsequential in\\n\\n\\n 31\\n\\flight of the other evidence of the defendant’s guilt. See Meridyth, 364 F.3d at\\n\\n1183. This factor strongly undermines Mr. Hargrove’s position and, combined\\n\\nwith the two other factors discussed above, firmly closes the door on his mistrial\\n\\nchallenge.\\n\\n The crux of Mr. Hargrove’s argument is that the improper stolen-gun\\n\\ntestimony “completely reframed the way the jury viewed [him],” Aplt.’s Opening\\n\\nBr. at 33, because “the jury would [have] likely view[ed] him as a ‘bad’ man, the\\n\\nkind of man that would [have been] involved in a scheme to possess and distribute\\n\\nmarijuana – without regard to the actual evidence presented,” id. at 32–33.\\n\\nHowever, the weight of the “actual evidence” against Mr. Hargrove—which\\n\\nundermined his defense theory that he had no knowledge of the drug-trafficking\\n\\nactivity afoot—would have rendered any prejudice from the stolen-gun testimony\\n\\ninconsequential.\\n\\n Although the trial presented considerable evidence that pointed towards Mr.\\n\\nHargrove’s guilt, we need not detail it all here. That is because, even standing\\n\\nalone, two lines of unchallenged evidence clearly incriminated Mr. Hargrove in\\n\\nthe charged drug trafficking, and a reasonable jury could have concluded that this\\n\\nevidence convincingly belied Mr. Hargrove’s defense theory predicated on his\\n\\nunawareness of that activity. More specifically, without more, these two lines of\\n\\nevidence established that “nothing about [the Border Patrol agent’s improper]\\n\\ncomment changed the basic nature of [Mr. Hargrove’s] trial.” United States v.\\n\\n\\n 32\\n\\fKravchuk, 335 F.3d 1147, 1155 (10th Cir. 2003). 8\\n\\n First, and perhaps most damning, is the testimony from one of the\\n\\nbackpackers, Mr. Silvas-Hinojos. During trial, Mr. Silvas-Hinojos testified that\\n\\nMr. Hargrove himself met the backpackers when they arrived and personally took\\n\\nmarijuana that Mr. Silvas-Hinojos was carrying; that Mr. Hargrove arranged the\\n\\nbundles of marijuana on the bed of the truck and covered the bundles with a tarp;\\n\\nand that Mr. Hargrove put one bundle of marijuana in the backseat of the truck\\n\\nbecause the stack of bundles in the truck bed was “too high.” R., Vol. III, at\\n\\n310–13. Significantly, Mr. Silvas-Hinojos’s testimony on these matters was left\\n\\nentirely without specific challenges during the course of the trial. As such, that\\n\\nundisputed testimony unequivocally indicated that Mr. Hargrove knew of and\\n\\nactively participated in the drug exchange, undercutting his defense theory and\\n\\n 8\\n In assessing the weight of the government’s evidence and the related\\neffect of the agent’s improper stolen-gun testimony, we do not factor into the\\ncalculus the dubious testimony of Mr. Hargrove’s co-defendant, Ms. Richter. The\\ngovernment asserts that Ms. Richter’s testimony undermines Mr. Hargrove’s\\ndefense theory because she testified that Mr. Hargrove was the one who arranged\\nthe marijuana deal. To be sure, Ms. Richter, during her direct examination, did\\nfinger Mr. Hargrove as the brains behind the operation. However, we question\\nthe reliability of this ostensibly incriminating testimony because Ms. Richter\\nadmitted that she had taken full responsibility for all of the events that occurred\\nand wholly exculpated Mr. Hargrove in her plea agreement. See R., Vol. III, at\\n97 (testifying that she (i.e., Ms. Richter) had previously stated that she, and not\\nMr. Hargrove, had planned the drug transaction and that she planned it because\\nshe was in need of money). Given that the two lines of unchallenged evidence\\ndiscussed above unequivocally pointed the jury to Mr. Hargrove’s\\nguilt—rendering the effect of the agent’s improper stolen-gun testimony\\ninconsequential—we need not rely on Ms. Richter’s dubious testimony to support\\nour analysis here.\\n\\n 33\\n\\fpointing directly toward a guilty verdict. Notably, Mr. Hargrove likewise fails to\\n\\naddress the significance of this testimony on appeal.\\n\\n Second, the government presented testimony from numerous agents\\n\\nthroughout trial that Mr. Hargrove’s defense that he thought the marijuana (all\\n\\n297 pounds of it) was alfalfa was incredible because alfalfa and marijuana smell\\n\\nnothing alike and are packaged in entirely distinct ways. See, e.g., id. at 47 (“Q.\\n\\nDid you notice anything when [Ms. Richter] rolled down the window? A. I could\\n\\nimmediately smell the smell of marijuana. Q. Have you spent any time around\\n\\nalfalfa, [agent]? A. A little bit. My aunt had a cattle farm down in Mexico,\\n\\ngrowing up. I’ve been around it. And also, through the work here, I’ve seen it.\\n\\nQ. Does it smell anything like marijuana? A. No, it does not.”); see also id. at\\n\\n65–66 (testifying that alfalfa is not packaged the same way as marijuana:\\n\\n“[Alfalfa is] actually not packaged. It’s kind of bounded [sic] together by wire.\\n\\nAs far as I know, they try to keep all the moisture out of it because if it gets wet\\n\\nor whatever . . . it spoils, so . . . they try to keep it open-air”); id. at 66–67 (“Q.\\n\\nAnd in your 12 years as a law enforcement officer, have you encountered a lot of\\n\\nmarijuana? A. Yes, sir. Q. Do you know what marijuana smells like? A. I do.\\n\\nQ. In your experience, does alfalfa smell like marijuana? A. Not at all”); id. at\\n\\n238 (after testifying that the marijuana was packaged in bundles, an agent further\\n\\ntestifying: “Q. Have you seen alfalfa before? A. Yes, sir, I have. Q. In your\\n\\nexperience, how is alfalfa packaged? A. Usually, three strand wires, maybe four\\n\\n\\n 34\\n\\fstrands, sometimes twine”). The ample testimony on this front would have made\\n\\npatent to the jury that Mr. Hargrove’s defense was based on a far-fetched\\n\\nassertion that he mistakenly believed that the marijuana was alfalfa. Again, Mr.\\n\\nHargrove does not raise any specific challenge to this testimony on appeal.\\n\\n Thus, we believe that these two lines of evidence, taken by themselves,\\n\\nstrongly and convincingly directed the jury to a guilty verdict. Therefore, we are\\n\\nquite confident that any “improper effect [the Border Patrol agent’s] intimations\\n\\nmay have had on the jury . . . pales in comparison to the total weight of the\\n\\ngovernment’s evidence.” Lamy, 521 F.3d at 1266. Accordingly, we conclude that\\n\\nthis factor too weighs in favor of affirming the district court’s denial of Mr.\\n\\nHargrove’s motion for mistrial.\\n\\n ***\\n\\n In light of the above analysis, and given that all three factors of the\\n\\nMeridyth test weigh in favor of the government, we conclude that the district\\n\\ncourt did not abuse its discretion in denying Mr. Hargrove’s motion for a mistrial.\\n\\n B\\n\\n We now turn to Mr. Hargrove’s second challenge: he contends that the\\n\\ndistrict court erred when it did not grant him a U.S.S.G. § 5C1.2 safety-valve\\n\\nadjustment during sentencing. More specifically, Mr. Hargrove argues that the\\n\\ndistrict court “erred by considering only Mr. Hargrove’s possession of the\\n\\nfirearms and their and his proximity to the marijuana, without taking into account\\n\\n\\n 35\\n\\fMr. Hargrove’s own conduct.” Aplt.’s Opening Br. at 7. We disagree and affirm\\n\\nthe district court’s safety-valve ruling. In the following discussion, we recount\\n\\n(1) the district court’s ruling, (2) our standard of review, (3) the legal framework\\n\\ngoverning our analysis, and (4) how that framework applies in this case.\\n\\n 1\\n\\n Generally, the district court evaluated whether Mr. Hargrove possessed the\\n\\nfirearms “in connection with the offense,” U.S.S.G. § 5C1.2(a)(2), by looking to\\n\\ntheir “proximity and potential to facilitate the offense.” R., Vol. I, at 24 (quoting\\n\\nUnited States v. Andrade-Vargas, 459 F. App’x 762, 767 (10th Cir. 2012)\\n\\n(unpublished)). Applying that rubric, the district court concluded that Mr.\\n\\nHargrove was not eligible for the safety-valve reduction because (1) the firearms\\n\\nwere located “in the cab of the pickup truck with Defendant and the marijuana,”\\n\\nand thus were in close proximity to the drug trafficking, and (2) the firearms “had\\n\\nthe potential” to facilitate the drug trafficking, even if the firearms did not do so\\n\\ndirectly. Id.\\n\\n More specifically, the district court highlighted several facts in support of\\n\\nits decision, including: that Mr. Hargrove, the drugs, and both guns were all in the\\n\\ncab of the pickup truck—with the pistol on the dashboard and the rifle behind the\\n\\nfront seat; that both guns were loaded; and that Mr. Hargrove evinced knowledge\\n\\nof the location of the guns, since he voluntarily told the agents about them. The\\n\\ncourt expressly took note of Mr. Hargrove’s exculpatory statements “that he had\\n\\n\\n 36\\n\\fno knowledge of the marijuana, he was in the area to fish, and he thought the\\n\\nbundles of marijuana were alfalfa,” but effectively declined to credit those\\n\\nstatements, finding instead that “[t]he presence of firearms was not coincidental\\n\\nor entirely unrelated to the drug transaction.” Id. at 22, 24; see also id., Vol. III,\\n\\nat 8 (regarding the presence of the guns, the district court stated: “If I’m going to\\n\\nmy first big drug deal in Rodeo -- in a farm outside Rodeo, New Mexico, in the\\n\\ndark of the night with a bunch of guys, backpackers, coming over the hill, I might\\n\\nthink I needed to be protected”). In sum, the district court determined that Mr.\\n\\nHargrove “ha[d] not met his burden by a preponderance of the evidence to\\n\\ndemonstrate eligibility for the safety valve” and thus he was “subject to the\\n\\nstatutory mandatory minimum sentence of 60 months.” Id., Vol. I, at 24.\\n\\n 2\\n\\n We review the district court’s denial of U.S.S.G. § 5C1.2 safety-valve\\n\\nrelief for clear error, “giving due deference to the district court’s application of\\n\\nthe Sentencing Guidelines to the facts.” United States v. Zavalza-Rodriguez, 379\\n\\nF.3d 1182, 1184 (10th Cir. 2004). “Clear error exists if a factual finding ‘is\\n\\nwholly without factual support in the record, or after reviewing the evidence, we\\n\\nare definitively and firmly convinced that a mistake has been made.’” United\\n\\nStates v. Hooks, 551 F.3d 1205, 1217 (10th Cir. 2009) (quoting United States v.\\n\\nIvory, 532 F.3d 1095, 1103 (10th Cir. 2008)). And this deferential standard of\\n\\nreview “applies equally regardless of whether the district court’s factual findings\\n\\n\\n 37\\n\\fare based on credibility determinations or on documentary evidence.” La\\n\\nResolana Architects, PA v. Reno, Inc., 555 F.3d 1171, 1177 (10th Cir. 2009);\\n\\naccord United States v. Little, 60 F.3d 708, 713 (10th Cir. 1995); see also United\\n\\nStates v. Galvon-Manzo, 642 F.3d 1260, 1270–71 (10th Cir. 2011) (observing, in\\n\\nanalyzing defendant’s challenge to safety-valve determination, that although\\n\\ndistrict court’s evaluation of attorney reports did not evaluate the defendant’s\\n\\ncredibility “in the typical sense, the court was considering the truthfulness and\\n\\n‘credibility’ of all the information he provided in various ways to the government\\n\\nand to the court,” and declining to disturb the district court’s “obvious[]”\\n\\ndetermination that defendant was not trustworthy).\\n\\n 3\\n\\n a\\n\\n Congress has enacted mandatory-minimum sentencing provisions for many\\n\\ndifferent crimes, including the drug-trafficking offenses at issue here. See, e.g.,\\n\\n21 U.S.C. §§ 841(a)(1), (b)(1)(B). However, Congress has “refine[d]” the\\n\\noperation of those mandatory-minimum provisions for “the least culpable\\n\\nparticipants” in federal drug-trafficking offenses by creating an exception to\\n\\nmandatory-minimum sentences, known as the safety valve, which applies when\\n\\ndefendants meet certain criteria. H.R. R EP . N O . 103-460, at 3 (1994), 1994 WL\\n\\n107571; see 18 U.S.C. § 3553(f); see also United States v. Pena-Sarabia, 297\\n\\nF.3d 983, 988 (10th Cir. 2002) (“The basic purpose of the safety valve was ‘to\\n\\n\\n 38\\n\\fpermit courts to sentence less culpable defendants to sentences under the\\n\\nguidelines, instead of imposing mandatory minimum sentences.’” (quoting\\n\\nAcosta-Olivas, 71 F.3d at 378)); accord United States v. Brooks, 722 F.3d 1105,\\n\\n1108 (8th Cir. 2013) (“In the safety valve statute and parallel advisory guidelines\\n\\nprovision, ‘Congress provided relief for less culpable drug offenders from its\\n\\nharsh mandatory minimum sentences.’” (quoting United States v. Tournier, 171\\n\\nF.3d 645, 646 (8th Cir. 1999))).\\n\\n At Congress’s direction, the Sentencing Commission has inserted the safety\\n\\nvalve provision into the Guidelines. See U.S.S.G. § 5C1.2, cmt. background.\\n\\nSection 5C1.2(a) provides relief under the safety valve if the defendant can meet\\n\\nthe following criteria:\\n\\n (1) the defendant does not have more than 1 criminal history\\n point, as determined under the sentencing guidelines before\\n application of subsection (b) of §4A1.3 (Departures Based on\\n Inadequacy of Criminal History Category);\\n\\n (2) the defendant did not use violence or credible threats of\\n violence or possess a firearm or other dangerous weapon (or\\n induce another participant to do so) in connection with the\\n offense;\\n\\n (3) the offense did not result in death or serious bodily injury to\\n any person;\\n\\n (4) the defendant was not an organizer, leader, manager, or\\n supervisor of others in the offense, as determined under the\\n sentencing guidelines and was not engaged in a continuing\\n criminal enterprise, as defined in 21 U.S.C. § 848; and\\n\\n (5) not later than the time of the sentencing hearing, the\\n\\n\\n 39\\n\\f defendant has truthfully provided to the Government all\\n information and evidence the defendant has concerning the\\n offense or offenses that were part of the same course of conduct\\n or of a common scheme or plan, but the fact that the defendant\\n has no relevant or useful other information to provide or that the\\n Government is already aware of the information shall not\\n preclude a determination by the court that the defendant has\\n complied with this requirement.\\n\\n§ 5C1.2(a)(1)–(5) (emphases added). 9 The defendant bears the burden of\\n\\nsatisfying all five criteria by a preponderance of the evidence. United States v.\\n\\nVerners, 103 F.3d 108, 110 (10th Cir. 1996). If the defendant satisfies all five\\n\\ncriteria, the sentencing “court shall impose a sentence without regard to a\\n\\nstatutory minimum.” Zavalza-Rodriguez, 379 F.3d at 1185.\\n\\n b\\n\\n Here, only the second criterion—whether Mr. Hargrove “possess[ed] a\\n\\nfirearm . . . in connection with the offense”—is at issue because the government\\n\\nhas conceded that Mr. Hargrove otherwise qualifies for the safety valve. We note\\n\\nthree principles informing what it means to possess a firearm “in connection with\\n\\nthe offense,” before summarizing one case particularly important to our analysis.\\n\\n i\\n\\n First, we have held that a firearm is possessed “in connection with the\\n\\noffense” if the firearm facilitates or, as relevant here, has the “potential to\\n\\nfacilitate” the offense. United States v. Hallum, 103 F.3d 87, 89 (10th Cir. 1996),\\n\\n 9\\n These five criteria replicate the relevant statute’s requirements. See\\n18 U.S.C. § 3553(f)(1)–(5).\\n\\n 40\\n\\foverruled on other grounds by Pena-Sarabia, 297 F.3d at 989 & n.2 (overruling\\n\\nby an en banc footnote). Hallum’s “facilitate or potential to facilitate” concept\\n\\narose out of statutory and Guidelines provisions that are analogous to the firearms\\n\\ncomponent of the safety-valve provision. For example, we interpreted similar\\n\\nlanguage in the Guidelines enhancement for defendants who possess a firearm “in\\n\\nconnection with another felony offense” as applying when “the weapon facilitates\\n\\nor has the potential to facilitate . . . the offense.” United States v. Walters, 269\\n\\nF.3d 1207, 1219 (10th Cir. 2001) (quoting United States v. Gomez-Arrellano, 5\\n\\nF.3d 464, 466–67 (10th Cir. 1993)). 10\\n\\n In doing so, we relied on the Supreme Court’s interpretation of whether a\\n\\nfirearm was used “in relation to” an offense in Smith v. United States, 508 U.S.\\n\\n223, 238 (1993), partially abrogated on other grounds by Bailey v. United States,\\n\\n516 U.S. 137 (1995). See Gomez-Arrellano, 5 F.3d at 466–67. In Smith, the\\n\\nSupreme Court had interpreted the “in relation to” language as requiring that “the\\n\\ngun at least must ‘facilitat[e], or ha[ve] the potential of facilitating,’ the drug\\n\\n\\n\\n 10\\n Walters and Gomez-Arrellano both addressed previous iterations of\\nU.S.S.G. § 2K2.1(b)(5). See U.S.S.G. § 2K2.1(b)(5) (1992) (“If the defendant\\nused or possessed any firearm or ammunition in connection with another felony\\noffense; or possessed or transferred any firearm or ammunition with knowledge,\\nintent, or reason to believe that it would be used or possessed in connection with\\nanother felony offense, increase by 4 levels. If the resulting offense level is less\\nthan level 18, increase to level 18.”); U.S.S.G. § 2K2.1(b)(5) (1998) (same); see\\nalso Walters, 269 F.3d at 1218; Gomez-Arrellano, 5 F.3d at 466. The Guidelines\\napplicable at the time of the offense contained similar language. U.S.S.G. §\\n2K2.1(b)(6)(B) (2016).\\n\\n 41\\n\\ftrafficking offense.” 508 U.S. at 238 (quoting United States v. Stewart, 779 F.2d\\n\\n538, 539 (9th Cir. 1985) (Kennedy, J.), overruled in part on other grounds, as\\n\\nrecognized in Muscarello v. United States, 524 U.S. 125, 137 (1998)). 11 Thus, in\\n\\nlight of the foregoing, we should consider Mr. Hargrove’s possession of the\\n\\nfirearms to have been “in connection with the offense” only if the firearms\\n\\nfacilitated or had the potential to facilitate the offense.\\n\\n Second, we have focused on “the defendant’s own conduct” in evaluating\\n\\nhis eligibility for safety-valve relief. Zavalza-Rodriguez, 379 F.3d at 1186.\\n\\nThus, for example, we have ruled that proof of “a joint criminal actor’s\\n\\nreasonably foreseeable possession of a firearm” is not “sufficient to foreclose” a\\n\\ndefendant from receiving safety-valve relief. Pena-Sarabia, 297 F.3d at 988–89\\n\\n& n.2 (overruling Hallum “to the extent it is inconsistent with th[is] rule” of law).\\n\\nThis focus on a defendant’s own conduct is fully in accord with the Sentencing\\n\\nCommission’s commentary, which ordinarily controls our interpretation of the\\n\\nadvisory Guidelines. See United States v. Gieswein, 887 F.3d 1054, 1058 (10th\\n\\n\\n\\n 11\\n Though the Hallum panel did not expressly mention the historical\\norigins of the “potential to facilitate” linguistic formulation, other panels of this\\ncourt, albeit in unpublished decisions, have recognized its historical roots. See\\nUnited States v. Archuleta, 257 F. App’x 116, 123 (10th Cir. 2007) (unpublished)\\n(connecting Hallum’s “potential to facilitate” language with Walters, 18 U.S.C. §\\n924(c)(1), and U.S.S.G. § 2K2.1(b)(5)); see also United States v. Castaneda\\nAscencio, 260 F. App’x 69, 71–72 (10th Cir. 2008) (unpublished) (quoting and\\naffirming the district court’s statement that Gomez-Arrellano’s “analysis is\\napplicable to the application of Sentencing Guideline Section 5C1.2,” before\\nrelying on Hallum’s “potential to facilitate” language).\\n\\n 42\\n\\fCir.) (noting that the Guidelines “commentary from the Sentencing Commission is\\n\\n‘authoritative unless it violates the Constitution or a federal statute, or is\\n\\ninconsistent with, or a plainly erroneous reading of, that guideline’” (quoting\\n\\nStinson v. United States, 508 U.S. 36, 38 (1993))), cert. denied, 139 S. Ct. 279\\n\\n(2018); accord United States v. Lucero, 747 F.3d 1242, 1247 (10th Cir. 2014).\\n\\nAs relevant here, the Commission expressly “limit[ed] the accountability of the\\n\\ndefendant to his own conduct and conduct that he aided or abetted, counseled,\\n\\ncommanded, induced, procured, or willfully caused.” U.S.S.G. § 5C1.2 cmt. n.4\\n\\n(emphasis added).\\n\\n Third and relatedly, Zavalza-Rodriguez emphasized that “possession in\\n\\n§ 5C1.2(a)(2) is an active possession whereby there is a close connection linking\\n\\nthe individual defendant, the weapon and the offense.” 379 F.3d at 1187\\n\\n(emphasis added).\\n\\n ii\\n\\n Zavalza-Rodriguez offers helpful instruction regarding the contours of the\\n\\n“own conduct” and “active possession” principles described supra. Therefore, we\\n\\nturn to look at Zavalza-Rodriguez in more depth.\\n\\n Zavalza-Rodriguez discussed these two principles in explaining why the\\n\\nfirearms provision of the safety valve is materially distinct from a related firearms\\n\\nenhancement in § 2D1.1(b)(1). That Guideline provides for an offense-level\\n\\nenhancement for certain convicted drug traffickers “[i]f a dangerous weapon\\n\\n\\n 43\\n\\f(including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). In\\n\\nZavalza-Rodriguez, police officers found the defendant in a home that contained\\n\\nnarcotics, material used to package narcotics, five firearms, and a large amount of\\n\\ncash. 379 F.3d at 1184. The officers found one of the firearms, a loaded\\n\\nsemiautomatic pistol, in the room where the defendant was staying. Id. The\\n\\nhome was owned by a third party who also was involved in selling narcotics, and\\n\\nthe defendant claimed that he had only spent one night in the home. Id.\\n\\n In his plea agreement, the defendant had stipulated to a sentencing\\n\\nenhancement pursuant to § 2D1.1(b)(1), which applies when “a dangerous weapon\\n\\n(including a firearm) was possessed,” based on the presence of the pistol;\\n\\nhowever, the defendant separately argued that he was eligible for the safety valve\\n\\nbecause the gun was not possessed “in connection with” the offense within the\\n\\nmeaning of § 5C1.2. Id. In particular, while the defendant acknowledged that he\\n\\nhad constructively possessed the gun through his knowledge of the gun’s presence\\n\\nin the bedroom where he stayed, he denied ever actually possessing or even\\n\\ntouching the gun. Id. at 1184–85. The district court accepted this argument, and\\n\\nheld the defendant was eligible for the safety valve, because there was a lack of\\n\\nevidence connecting the defendant to the gun. Id. at 1184.\\n\\n We affirmed. To start, we “explain[ed] that while a § 2D1.1(b)(1) sentence\\n\\nenhancement applies to a defendant for a co-conspirator’s possessing a weapon, a\\n\\ndefendant is not precluded from receiving a safety valve reduction [in the context\\n\\n\\n 44\\n\\fof such a conspiracy] based on the defendant’s individual conduct,” if that\\n\\nconduct does not run afoul of the firearms component of the safety-valve\\n\\nprovision. Id. at 1186 (emphasis added); see also id. (noting that, “[a]lthough\\n\\nconspiracy was not charged in the information, [the defendant’s] situation is\\n\\nclosely analogous to the facts of these cases”). This is because in evaluating the\\n\\nsafety-valve provision, unlike § 2D1.1(b)(1), we focus on the defendant’s “own\\n\\nconduct” and “recognize a distinction between constructive and actual\\n\\npossession.” Id. Thus, while a co-conspirator’s possession of a firearm might\\n\\nsatisfy § 2D1.1(b)(1), the Guidelines commentary to the safety-valve provision\\n\\nlimits a defendant’s accountability to his “own conduct.” U.S.S.G. § 5C1.2 cmt.\\n\\nn.4.\\n\\n As for “active possession” of a firearm—which, as noted, entails a “close\\n\\nconnection linking the individual defendant, the weapon and the offense”—we\\n\\nreasoned that this requirement prevents mere constructive possession (without\\n\\nmore) from satisfying the safety-valve provision, though it might satisfy\\n\\n§ 2D1.1(b)(1). Zavalza-Rodriguez, 379 F.3d at 1186–87. 12 However, we\\n\\nspecifically distinguished situations involving mere constructive possession, as in\\n\\nZavalza-Rodriguez, from those where a defendant acknowledged actual\\n\\n 12\\n See also United States v. Gutierrez-Casillas, 140 F. App’x 26, 28\\n(10th Cir. 2005) (unpublished) (“We concluded [in Zavalza-Rodriguez] that\\n§ 2D1.1(b)(1) merely requires ‘constructive possession,’ based on proximity of\\nthe gun, whereas § 5C1.2 requires ‘actual possession,’ which is characterized by a\\ncloser degree of connection.” (quoting Zavalza-Rodriguez, 379 F.3d at 1186–88)).\\n\\n 45\\n\\fpossession of a firearm. Id. at 1186 n.2. Taking note of our prior precedent,\\n\\nespecially Hallum, we acknowledged that, when a defendant “did not argue that\\n\\nthe gun was not actually his nor that it was merely constructively possessed,” “a\\n\\ngun’s proximity and potential to be used in connection with the offense” may well\\n\\nbe sufficient to bar safety-valve relief. Id. (citing Hallum, 103 F.3d at 89). 13\\n\\n 13\\n We made this acknowledgment in the course of harmonizing the\\nprinciples announced in Zavalza-Rodriguez with our prior precedent, most notably\\nin Hallum, where we held that “a firearm’s proximity and potential to facilitate\\nthe offense is enough to prevent application of [U.S.S.G.] § 5C1.2(2),” 103 F.3d\\nat 89. See Zavalza-Rodriguez, 379 F.3d at 1186 n.2. Because “[i]n cases of\\nconflicting circuit precedent our court ‘follow[s] earlier, settled precedent over a\\nsubsequent deviation therefrom,’” United States v. Sabillon-Umana, 772 F.3d\\n1328, 1334 n.1 (10th Cir. 2014) (quoting Haynes v. Williams, 88 F.3d 898, 900\\nn.4 (10th Cir. 1996)), it was incumbent upon the Zavalza-Rodriguez panel to\\nexplain why the dimensions of the safety-valve provision that it outlined were\\ncongruent with our earlier decision in Hallum. In other words, we recognized that\\nHallum was the law of this circuit. And, rather than purporting to overrule any\\nportion of it, as we did in Pena-Sarabia, 297 F.3d at 989 & n.2, the\\nZavalza-Rodriguez panel endeavored—as principles of stare decisis dictated—to\\nharmonize its articulation of the safety-valve’s dimensions with Hallum’s holding\\nthat a firearm’s proximity and potential to facilitate the offense may be\\ndeterminative. Given that this harmonization endeavor was a necessary step in\\nestablishing the legitimacy and integrity of Zavalza-Rodriguez’s holding, we are\\nentirely unpersuaded by Mr. Hargrove’s assertion that Zavalza-Rodriguez’s\\ndiscussion of Hallum amounted to no more than non-binding dicta. See Aplt.’s\\nOpening Br. at 15 n.5 (contending that in Zavalza-Rodriguez “the Court did not\\nneed to consider—and did not consider—whether its opinion had an impact on\\nHallum, and its discussion of Hallum is nothing more than dicta”). Compare\\nMichael Abramowicz & Maxwell Stearns, Defining Dicta, 57 S TAN . L. R EV . 953,\\n953 (2005) (“A holding consists of those propositions along the chosen decisional\\npath or paths of reasoning that are actually decided, are based upon the facts of\\nthe case, and lead to the judgment. A proposition in a case that is not holding is\\ndicta.” (emphasis added)), with Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1184\\n(10th Cir. 1995) (“Dicta are ‘statements and comments in an opinion concerning\\nsome rule of law or legal proposition not necessarily involved nor essential to\\n (continued...)\\n\\n 46\\n\\f In other words, in the parlance of Zavalza-Rodriguez, in those\\n\\ncircumstances a court may find that a defendant “actively possessed” the firearm.\\n\\n379 F.3d at 1188. This makes sense. Where a defendant’s actual possession is\\n\\nundisputed, the sentencing court may find—by focusing on the defendant’s own\\n\\nconduct—the close connection that active possession requires between the\\n\\ndefendant and the firearm. As Zavalza-Rodriguez suggests, in a scenario of\\n\\nconstructive possession, ordinarily more would be required to establish such a\\n\\nclose connection. Compare id. at 1186 (noting that “we focus on the defendant’s\\n\\nown conduct for purposes of evaluating eligibility for the safety valve, and that\\n\\nwe recognize a distinction between constructive and actual possession”), with\\n\\nAndrade-Vargas, 459 F. App’x at 764, 768 (declaring “mistaken” the notion that\\n\\nZavalza-Rodrigruez held that “one must have actual physical possession of the\\n\\nfirearm to make him ineligible for a safety valve reduction” and ruling in a\\n\\ncircumstance where the defendant argued that “no evidence showed anyone saw\\n\\nhim possessing a firearm” that constructive possession was sufficient to establish\\n\\nthe active possession that Zavalza-Rodriguez requires, where the defendant had\\n\\n“knowledge and control of the firearms found in the bedroom he rented and had\\n\\nexclusive control over”). And, once the close connection between the defendant\\n\\nand the firearm is established, proof that the firearm was in close proximity to the\\n\\n 13\\n (...continued)\\ndetermination of the case in hand.’” (emphasis added) (quoting Dicta, B LACK ’ S\\nL AW D ICTIONARY (6th ed. 1990)).\\n\\n 47\\n\\foffense and had the potential to facilitate the offense would round out the features\\n\\nof Zavalza-Rodriguez’s “active possession” requirement by demonstrating the\\n\\nclose connection between the firearm and the offense. See United States v.\\n\\nPayton, 405 F.3d 1168, 1171 (10th Cir. 2005) (noting, where defendant actually\\n\\npossessed the firearms, that “[t]he mere propinquity of the weapons and drugs\\n\\nsuggests a connection between the two”).\\n\\n In sum, our cases teach that a firearm is used “in connection with an\\n\\noffense” when it facilitates or has the “potential to facilitate” that offense.\\n\\nHallum, 103 F.3d at 89. The focus of our inquiry is “the defendant’s own conduct\\n\\nfor purposes of evaluating eligibility for the safety valve.” Zavalza-Rodriguez,\\n\\n379 F.3d at 1186 (emphasis added). And the kind of firearms possession that bars\\n\\napplication of the safety valve is “active possession whereby there is a close\\n\\nconnection linking the individual defendant, the weapon and the offense.” Id. at\\n\\n1187. Lastly, in circumstances where the defendant’s own conduct evinces actual\\n\\npossession of the firearm, we have recognized that active possession may be\\n\\nshown by evidence of “[that] firearm’s proximity and potential to facilitate the\\n\\noffense.” Hallum, 103 F.3d at 89; see Zavalza-Rodriguez, 379 F.3d at 1186 n.2.\\n\\n 4\\n\\n As noted, Mr. Hargrove contends that the district court “erred by\\n\\nconsidering only Mr. Hargrove’s possession of the firearms and their and his\\n\\nproximity to the marijuana, without taking into consideration Mr. Hargrove’s own\\n\\n\\n 48\\n\\fconduct—a consideration required by this Court’s authorities.” Aplt.’s Opening\\n\\nBr. at 7. However, under the legal principles discussed above, Mr. Hargrove’s\\n\\nargument cannot prevail.\\n\\n a\\n\\n In Zavalza-Rodriguez, we expressly acknowledged that when a defendant\\n\\nconcedes actual possession of a firearm (as opposed to mere constructive\\n\\npossession), the requirement of active possession—based on defendant’s own\\n\\nconduct—may be rounded out and completed by further evidence that the\\n\\npossessed firearm was in close proximity to the offense and had the potential to\\n\\nfacilitate it. See 379 F.3d at 1186 n.2. Accordingly, contrary to Mr. Hargrove’s\\n\\nassertion, on these facts—where Mr. Hargrove freely admitted that the firearms\\n\\nbelonged to him and indicated that he had brought them in the vehicle to the\\n\\nscene of his arrest—the district court’s express focus on the firearms’ proximity\\n\\nand potential to facilitate the offense did not reflect an analytical disregard of Mr.\\n\\nHargrove’s own conduct.\\n\\n Indeed, Mr. Hargrove’s admissions regarding possession of the firearms\\n\\nplaced his own conduct front and center, and they were the jumping-off point for\\n\\nthe court’s further inquiries into proximity and facilitation. In other words, by\\n\\nfocusing on Mr. Hargrove’s admissions regarding his own conduct, the court\\n\\ncould discern that Mr. Hargrove actually possessed the firearms at some point\\n\\nduring the trip—at least likely so at the trip’s beginning, when the firearms were\\n\\n\\n 49\\n\\fplaced in the vehicle—and had the firearms in close proximity to him thereafter,\\n\\nincluding at the time of his arrest. These admissions were sufficient to establish\\n\\nthe close connection required for active possession between Mr. Hargrove and the\\n\\nfirearms. At that point, the court was left with the task of determining whether\\n\\nthe requisite close connection existed between the firearms and the offense, so as\\n\\nto establish active possession. As Zavalza-Rodriguez acknowledged, this close\\n\\nconnection—under circumstances such as these—could be established where the\\n\\nfirearm was in close proximity to and had the potential to facilitate the offense.\\n\\nSee 379 F.3d at 1186 n.2.\\n\\n And that was certainly true here. As noted, the district court specifically\\n\\nfound (1) that the firearms were located “in the cab of the pickup truck with\\n\\nDefendant and the marijuana,” and thus were in close proximity to the drug\\n\\ntrafficking, and (2) that the firearms—which were loaded—“had the potential” to\\n\\nfacilitate the drug trafficking, even if the firearms did not do so directly. R., Vol.\\n\\nI, at 24. There is ample evidence in the record to support these factual findings.\\n\\nAnd it is well established that firearms are “‘tools of the trade’—that is, means\\n\\nfor the distribution of illegal drugs.” United States v. Martinez, 938 F.2d 1078,\\n\\n1083 (10th Cir. 1991) (quoting United States v. Wiener, 534 F.2d 15, 18 (2d Cir.\\n\\n1976)); accord United States v. McGehee, 672 F.3d 860, 872 (10th Cir. 2012); see\\n\\nalso United States v. Burkley, 513 F.3d 1183, 1188 (10th Cir. 2008) (noting that\\n\\n“evidence of Defendant’s firearm possession would have been admissible to prove\\n\\n\\n 50\\n\\fhis intent to distribute marijuana”). Firearms are used by drug traffickers (among\\n\\nother things) to protect themselves from other criminals and to safeguard their\\n\\nvaluable narcotics from theft. See, e.g., United States v. Lott, 310 F.3d 1231,\\n\\n1248 (10th Cir. 2002) (“We conclude that the placement of a loaded,\\n\\nsemi-automatic weapon on the driver’s seat of the car in which the\\n\\ninstrumentalities of methamphetamine manufacturing were also found is sufficient\\n\\nevidence from which a jury could conclude that the purpose of the gun was to\\n\\nprovide defense or deterrence in furtherance of attempting to manufacture\\n\\nmethamphetamine.”); see also United States v. King, 632 F.3d 646, 657 (10th Cir.\\n\\n2011) (“Because the loaded rifle in this case was located immediately adjacent to\\n\\nthe drugs, a reasonable jury could infer that it furthered [the defendant’s] drug\\n\\ntrade by protecting [the defendant] and his merchandise.”). Thus, Mr. Hargrove’s\\n\\nloaded guns certainly had the potential to fulfill this protective purpose and, as\\n\\nthe district court specifically ruled, they had the potential to facilitate the drug-\\n\\ntrafficking offense.\\n\\n To be sure, Mr. Hargrove has argued that his possession of the firearms was\\n\\nunrelated to the drug-trafficking activity. In this regard, before the district court,\\n\\nhe asserted “that he had no knowledge of the marijuana, he was in the area to fish,\\n\\nand he thought the bundles of marijuana were alfalfa.” R., Vol. I, at 22.\\n\\nHowever, the court effectively discounted these statements in determining that\\n\\n“[t]he presence of the firearms was not coincidental or entirely unrelated to the\\n\\n\\n 51\\n\\fdrug transaction.” Id. at 24. 14 And nothing in this record gives us pause in\\n\\naccording this factual determination the customary measure of deference. See,\\n\\ne.g., Hooks, 551 F.3d at 1217.\\n\\n Mr. Hargrove repeatedly objects that the district court did not take into\\n\\naccount that there was “no evidence that Mr. Hargrove had ever been involved in\\n\\nany sort of drug distribution,” Aplt.’s Reply Br. at 14 n.4, and “did not find that\\n\\nMr. Hargrove actually used or attempted to use the firearms in any way,” Aplt.’s\\n\\nOpening Br. at 10. See Aplt.’s Opening Br. at 21 (noting that “Mr. Hargrove has\\n\\nno criminal history relating to the distribution of drugs or the use of firearms, let\\n\\nalone at the same time”); Aplt.’s Reply Br. at 17 (“There must be something more\\n\\nin the way of the defendant’s own conduct (such as evidence the defendant had\\n\\nbeen running a drug operation or evidence that the defendant planned to use the\\n\\nweapon against human beings) that establishes the weapons were connected to the\\n\\noffense.”). However, Mr. Hargrove cites no Tenth Circuit authority holding that a\\n\\ndefendant’s prior drug-trafficking activities or actual use of the firearm are\\n\\nnecessary to establish active possession—much less that such factors are\\n\\n 14\\n Panels of this court have frequently declined to credit self-serving\\nstatements about the purpose of a defendant’s firearm possession. See, e.g.,\\nAndrade-Vargas, 459 F. App’x at 768 (“[I]t is evident that, in denying the\\nreduction, the district court discredited Mr. Andrade-Vargas’s seemingly\\nself-serving claims he did not own the handguns and that they were not in the\\nroom for the purpose of facilitating his drug trafficking activities—both of which\\nwere unsupported by any evidence.”); Gutierrez-Casillas, 140 F. App’x at 28\\n(affirming district court’s decision to “discount[]” each defendant’s credibility\\n“by self-interest” (quoting record)).\\n\\n 52\\n\\fdeterminative. 15 In particular, there is nothing in Zavalza-Rodriguez that supports\\n\\nsuch a proposition. In fact, we have binding Tenth Circuit authority to the\\n\\ncontrary—that is, where neither prior drug-trafficking activity nor actual use of\\n\\nthe firearm appeared to play any role in our denial of safety-valve relief. See\\n\\nHallum, 103 F.3d at 89.\\n\\n In sum, based on the foregoing, we reject Mr. Hargrove’s argument that the\\n\\ndistrict court failed to properly focus on his own conduct and, thus, did not\\n\\ncorrectly determine his eligibility for safety-valve relief. In our view, the district\\n\\ncourt’s ruling is sound and consistent with our caselaw.\\n\\n b\\n\\n A closer inspection of our precedential Hallum decision only serves to\\n\\nunderscore the correctness of our judgment. Indeed, even standing alone,\\n\\nHallum—which involved materially similar facts—would arguably be\\n\\ndeterminative. In Hallum, officers apprehended Mr. Hallum and two accomplices\\n\\nwho were carrying duffle bags full of marijuana from a marijuana patch to their\\n\\nvehicles, which were parked “200 to 300 yards” away from the patch. 103 F.3d at\\n\\n89. After searching the vehicles, the officers found a .22 caliber rifle, which Mr.\\n\\n\\n\\n 15\\n Mr. Hargrove relatedly asserts that “the precedential authority\\nrequires some affirmative action on the part of a defendant to establish that a\\nweapon was possessed ‘in connection with the offense.’” Aplt.’s Reply Br. at 11\\n(emphasis added). But Mr. Hargrove cites no precedential authority to support\\nthis assertion, merely directing us to the plain text of § 5C1.2(a)(2), which is\\nunavailing.\\n\\n 53\\n\\fHallum later conceded was his. Mr. Hallum testified that he brought the rifle “to\\n\\nshoot snakes, and that while he could have used it to protect against another\\n\\nperson he did not have that intention and ‘would have not wanted to.’” Id.\\n\\n(quoting record). “The district court rejected the essence of Hallum’s testimony,\\n\\ndeclaring that if defendants were afraid of and protecting against snakes they\\n\\nwould not have left the rifle in the vehicle some 200 yards from the marijuana\\n\\npatch.” Id. The district court further found that “the weapon was close to the\\n\\nmarijuana cultivation activity, and accessible.” Id. (quoting record).\\n\\n We affirmed the district court’s denial of Mr. Hallum’s safety-valve\\n\\nrequest. We deemed it significant that Mr. Hallum admitted that he had the gun\\n\\n“for protection.” Id. (quoting record). “This plus the district court’s other\\n\\nfindings . . . establish[ed] proximity of the firearm to the offense.” Id. And, on\\n\\nthese facts, we held that “a firearm’s proximity and potential to facilitate the\\n\\noffense is enough to prevent application of [U.S.S.G.] § 5C1.2(2).” Id. Notably,\\n\\nviewed through the prism crafted by our subsequent decision in Zavalza-\\n\\nRodriguez, all of the elements of the requisite active possession were present in\\n\\nHallum: Mr. Hallum conceded his actual possession of the firearm, establishing a\\n\\nclose connection between him and the weapon, and the proximity of the firearm to\\n\\nthe marijuana and the evident drug-trafficking activity of Mr. Hallum established\\n\\nthe close connection between the weapon and the offense. See Zavalza-\\n\\nRodriguez, 379 F.3d at 1187. And Mr. Hallum acknowledged that the weapon\\n\\n\\n 54\\n\\fcould have been used as protection against other human beings, meaning that it\\n\\nhad the potential to facilitate his drug trafficking. Thus, the district court’s denial\\n\\nof safety-valve relief should come as no surprise.\\n\\n Nor should a similar outcome surprise us here. Indeed, Hallum virtually\\n\\ncommands it. 16 We begin with proximity. The officers apprehended Mr.\\n\\nHargrove in a rural area with almost 300 pounds of marijuana in his pickup truck.\\n\\n“A [loaded] semi-automatic pistol . . . was on the dashboard and a loaded rifle\\n\\nwas behind the seat.” R., Vol. I, at 21. The district court specifically noted that\\n\\n“[t]he firearms were located in the cab of the pickup truck with Defendant and the\\n\\nmarijuana.” Id. at 24. The firearms here were thus even closer to Mr. Hargrove\\n\\nand the illegal narcotics than the firearm in Hallum was to Mr. Hallum.\\n\\n\\n\\n 16\\n As we previously mentioned, Hallum was overruled in part by an en\\nbanc footnote in Pena-Sarabia, 297 F.3d at 989 & n.2. In the overruled portion\\nof Hallum, we erroneously applied the principle that “participants in joint\\ncriminal enterprises can be accountable for the foreseeable acts of others that\\nfurther the joint activity,” in concluding that Mr. Hallum’s co-conspirators, like\\nMr. Hallum, did not qualify for safety-valve relief simply because they “knew of\\nthe presence of the weapon Hallum brought to the marijuana patch; [and] that it\\nmight further their joint activity was reasonably foreseeable.” Hallum, 103 F.3d\\nat 90. But, importantly, the court’s holding and analysis with respect to Mr.\\nHallum, which we explicate in text here, has maintained its vitality. See also\\nAndrade-Vargas, 459 F. App’x at 767 (noting that “we have continued to rely on\\nour holding in Hallum that a firearm’s proximity and potential to facilitate the\\noffense may be sufficient to prevent application of the safety valve provision”);\\nUnited States v. Montgomery, 387 F. App’x 884, 888 (10th Cir. 2010)\\n(unpublished) (relying on Hallum); United States v. McClure, 358 F. App’x 5, 12\\n(10th Cir. 2009) (unpublished) (same); United States v. Gonzalez-Ambriz, 353 F.\\nApp’x 155, 157 (10th Cir. 2009) (unpublished) (same); Archuleta, 257 F. App’x\\nat 123 (same).\\n\\n 55\\n\\f Further, like Mr. Hallum, Mr. Hargrove “voluntarily informed the agents of\\n\\nthe presence of the firearms when he was seized.” Id. at 21. Mr. Hargrove told\\n\\nthe agents that he had “two weapons inside the vehicle,” the rifle and the pistol.\\n\\nId., Vol. III, at 263. In post-arrest statements, Mr. Hargrove “admitted the loaded\\n\\nrifle and pistol found in his truck belonged to him.” Id., Vol. II, ¶ 8, at 5. 17 And,\\n\\nas in Hallum, these admissions supported a finding that Mr. Hargrove actually\\n\\npossessed the firearms at some point during the trip and had them in close\\n\\nproximity to him.\\n\\n Finally, as in Hallum, Mr. Hargrove also ostensibly had the guns for\\n\\nprotection against snakes but the district court effectively discredited that\\n\\nexculpatory explanation in denying him safety-valve relief. Mr. Hargrove asserts,\\n\\nhowever, that Hallum is not “directly analogous” to this case because, even\\n\\nthough Mr. Hallum testified regarding having the firearm for protection against\\n\\nsnakes, the Hallum panel elided the snake explanation and determined that he\\n\\n“had his gun ‘for protection’ in general, which necessarily implies that it could be\\n\\nfor ‘protection’ from anything, including human beings.” Aplt.’s Reply Br. at 12.\\n\\nThe situation here, as Mr. Hargrove reasons, is different; specifically, the\\n\\n\\n\\n 17\\n Indeed, in his opening statement, Mr. Hargrove’s counsel told the\\njury that Mr. Hargrove and Ms. Richter “have a lot of things in their truck,”\\nincluding “a .25 caliber tiny little pistol” and the rifle that Mr. Hargrove “drives\\naround with.” R., Vol. III, at 204. And, during a bench conference with the\\njudge, Mr. Hargrove’s counsel plainly admitted that Mr. Hargrove “claimed\\nownership of the gun. . . . [H]e claimed ownership about it.” Id. at 278.\\n\\n 56\\n\\fevidence indicated that he had the firearms only as protection against snakes.\\n\\n This line of argument is strained and unpersuasive. It is not remarkable\\n\\nthat the Hallum panel spoke generally of Mr. Hallum having the firearms “for\\n\\nprotection,” without any reference to the snakes justification, because the panel\\n\\nhad credited the district court’s finding that Mr. Hallum’s snake story was\\n\\nincredible. 103 F.3d at 89 (noting the district court’s statement that “if\\n\\ndefendants were afraid of and protecting against snakes they would not have left\\n\\nthe rifle in the vehicle some 200 yards from the marijuana patch”). As such, Mr.\\n\\nHargrove actually is on precisely the same footing as Mr. Hallum because the\\n\\ndistrict court here also effectively found incredible Mr. Hargrove’s exculpatory\\n\\nstatements about having the guns for protection against snakes, noting specifically\\n\\nthat “[t]he presence of firearms was not coincidental or entirely unrelated to the\\n\\ndrug transaction.” R., Vol. I, at 24. By merely reiterating statements “not found\\n\\nto be credible” by the district court, Mr. Hargrove is effectively asking “us for a\\n\\nde novo determination of credibility. [However, that] is not our role.” Payton,\\n\\n405 F.3d at 1171; see Galvon-Manzo, 642 F.3d at 1270–71; Hooks, 551 F.3d at\\n\\n1217.\\n\\n In sum, Hallum cogently underscores the correctness of our decision to\\n\\nuphold the district court’s denial of safety-valve relief to Mr. Hargrove. Indeed,\\n\\ngiven the similarity of Hallum’s facts to the instant case, it is arguably\\n\\ndeterminative.\\n\\n\\n 57\\n\\f ***\\n\\n In sum, we conclude that the district court did not err in determining that\\n\\nMr. Hargrove did not establish a basis for safety-valve relief under U.S.S.G.\\n\\n§ 5C1.2.\\n\\n III\\n\\n Based on the foregoing, we AFFIRM the district court’s judgment\\n\\nregarding Mr. Hargrove’s conviction and sentence.\\n\\n\\n\\n\\n 58\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4355538/\", \"author_raw\": \"HOLMES, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"TYMKOVICH"},"judge2":{"kind":"string","value":"BALDOCK"},"judge3":{"kind":"string","value":"HOLMES"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4578285/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. John Wayne HARGROVE, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-02\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n Tenth Circuit\n\n January 2, 2019\n PUBLISH\n Elisabeth A. Shumaker\n UNITED STATES COURT OF APPEALS Clerk of Court\n\n TENTH CIRCUIT\n\n\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n v. No. 17-2102\n JOHN WAYNE HARGROVE,\n\n Defendant - Appellant.\n\n\n\n Appeal from the United States District Court\n for the District of New Mexico\n (D.C. No. 2:16-CR-02705-RB-2)\n\n\n\nRyan A. Ray, Norman Wohlgemuth Chandler Jeter Barnett & Ray, Tulsa,\nOklahoma, for Defendant-Appellant.\n\n\nDustin C. Segovia, Assistant United States Attorney (John D. Tierney, Acting\nUnited States Attorney, with him on brief), Office of the United States Attorney\nfor the District of New Mexico, Las Cruces, New Mexico, for Plaintiff-Appellee.\n\n\n\n\nBefore TYMKOVICH, Chief Judge, BALDOCK, and HOLMES, Circuit Judges.\n\n\n\nHOLMES, Circuit Judge.\n\f United States Border Patrol agents found Defendant-Appellant John Wayne\n\nHargrove, his girlfriend Janelle Richter, and Edgar Silvas-Hinojos in the desert\n\nnear the border between Arizona and New Mexico. They were all in Mr.\n\nHargrove’s truck, along with nearly 300 pounds of marijuana and two firearms.\n\nMr. Hargrove was subsequently charged with two offenses: (1) conspiracy to\n\ndistribute more than 100 kilograms of marijuana in violation of 21 U.S.C. § 846;\n\nand (2) possession with the intent to distribute 100 kilograms or more of a\n\nmixture and substance containing a detectable amount of marijuana, and aiding\n\nand abetting said possession, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and\n\n18 U.S.C. § 2. After a two-day jury trial, Mr. Hargrove was found guilty and\n\nsentenced to sixty months’ imprisonment.\n\n Mr. Hargrove now raises two challenges on appeal. First, with regard to\n\nhis trial, Mr. Hargrove asserts that the district court erred in failing to grant him a\n\nmistrial after the prosecutor elicited testimony that the district court had\n\npreviously barred. Second, Mr. Hargrove contends that the district court erred in\n\nfailing to grant him safety-valve relief under § 5C1.2 of the United States\n\nSentencing Guidelines (“Guidelines” or “U.S.S.G.”). Because we hold that the\n\ndistrict court did not err with respect to either ruling, we affirm.\n\n\n\n\n 2\n\f I\n\n A\n\n One night in February 2016, a Border Patrol agent detected seven\n\nbackpackers in the desert near Rodeo, New Mexico. 1 This rural area is known for\n\nnarcotics trafficking. After that agent observed the backpackers, he alerted other\n\nBorder Patrol agents, who moved in to apprehend the backpackers. The agents\n\nobserved the seven backpackers enter an area containing ranching equipment. Six\n\nof the seven backpackers then left this area without their backpacks. The agents\n\ndetained these six backpackers. The backpackers were dressed in camouflage\n\nclothing and wearing carpeted booties on their feet, which are typically worn to\n\nmask footprints. They admitted they had entered the country illegally.\n\n The dispatched agents then began looking for the missing (i.e., seventh)\n\nbackpacker and the discharged backpacks. The agents discovered a truck that\n\nappeared to be occupied by two individuals who were “trying to conceal\n\nthemselves or pretend[ing] to be sleeping in the truck, kind of slouching low in\n\ntheir chairs.” R., Vol. III, at 46 (Trial Tr., dated Oct. 17–18, 2016). As they\n\napproached, the agents could detect the smell of marijuana emanating from the\n\ntruck. An agent tapped on the truck’s window and asked the occupant on the\n\n\n\n 1\n In the narcotics-trafficking context, a “backpacker” is a person who\nsmuggles marijuana across the United States-Mexico border. See R., Vol. III, at\n36–37 (Trial Tr., dated Oct. 17–18, 2016).\n\n 3\n\fdriver’s side—a woman, later identified as Ms. Richter—to roll down the\n\nwindow. After she did so, Ms. Richter got out of the vehicle. Likewise, an agent\n\nalso asked the occupant of the front passenger’s side of the vehicle—a man, later\n\nidentified as Mr. Hargrove—to get out of the truck. Mr. Hargrove complied.\n\nThere was also a third person in the truck, in the back seat on the passenger’s\n\nside, who the agents had not originally seen. This man, later identified as Mr.\n\nSilvas-Hinojos, also exited the truck. The agents believed that Mr. Silvas-\n\nHinojos was the seventh backpacker.\n\n After the three occupants exited the truck, an agent noticed a bundle of\n\nmarijuana lying in the center of the truck’s back seat. Agents also found and\n\nseized more bundles of marijuana in the bed of the truck; these bundles were\n\npartially covered by a tarp. The government later learned (through the\n\ncooperation of Mr. Silvas-Hinojos) that Mr. Hargrove had received the bundles of\n\nmarijuana from the backpackers and strapped them down in the bed of his truck.\n\nIn total, the agents seized approximately 297 pounds of marijuana from the truck.\n\n When Mr. Hargrove exited the truck, an agent patted him down and found\n\ntwo knives on his person. After another agent noticed a rifle in the truck’s back\n\nseat, Mr. Hargrove told the agents that he had “two weapons inside the vehicle,”\n\nincluding the rifle. Id. at 263. The second firearm, a pistol, was found on the\n\ntruck’s dashboard inside a bag bearing an Oakland Raiders emblem. At the time\n\nof these events, Ms. Richter was wearing a jacket with an Oakland Raiders\n\n 4\n\femblem that matched the one on the bag containing the pistol. Mr. Hargrove, Ms.\n\nRichter, and all of the backpackers were arrested.\n\n After his arrest, Mr. Hargrove again “admitted the loaded rifle and pistol\n\nfound in his truck belonged to him.” Id., Vol. II, ¶ 8, at 5 (Presentence\n\nInvestigation Report (“PSR”), dated Jan. 26, 2017). The agents asked Mr.\n\nHargrove about the bundles of marijuana they had found in his truck, and he told\n\nthe agents that he believed the bundles were alfalfa, not marijuana, and that he\n\nwas simply in the area to go fishing.\n\n B\n\n Mr. Hargrove was charged with two counts: (1) conspiracy to distribute\n\nmore than 100 kilograms of marijuana in violation of 21 U.S.C. § 846; and (2)\n\npossession with the intent to distribute 100 kilograms or more of a mixture and\n\nsubstance containing a detectable amount of marijuana, and aiding and abetting\n\nsaid possession, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C.\n\n§ 2. Ms. Richter and two of the backpackers were charged with similar crimes,\n\nbut these three pleaded guilty pursuant to plea agreements. Mr. Hargrove\n\nproceeded to trial.\n\n 1\n\n Prior to trial, Mr. Hargrove filed a motion in limine requesting that the\n\ndistrict court exclude all evidence regarding firearms or knives, including “all\n\npurported testimony [that] one of the firearms [was] stolen.” Suppl. R. at 12–14\n\n 5\n\f(Mr. Hargrove’s Mot. in Lim., dated Oct. 10, 2016). This motion contended that\n\n“the possession of the firearms was simply part of his property” and that Mr.\n\n“Hargrove made no attempt to hide or distance himself from the firearms,” and it\n\nargued, among other things, that admitting evidence that one of the firearms was\n\nstolen would be unduly prejudicial. Id. at 13–14.\n\n The district court resolved this motion in a written order. It reasoned that\n\n“[t]he presence of loaded firearms that Defendant admitted belong to him, and\n\ntheir location in the cab of the truck[,] is probative of Defendant’s knowledge and\n\nof his agreement to participate in a drug trafficking scheme.” Id. at 18 (Mem. Op.\n\nand Order, dated Oct. 14, 2016). The court further ruled that the probative value\n\nof this evidence was not substantially outweighed by potential prejudice; thus, the\n\nevidence was admissible. But the court adopted a contrary stance regarding the\n\nstolen nature of one of the firearms, concluding that “the fact that one of the\n\nfirearms was stolen is not particularly probative of any fact at issue.” Id.\n\nConsequently, the court found this evidence to be inadmissible, as the risk of\n\nprejudice substantially outweighed any conceivable relevance. Thus, the court\n\ngranted the motion in part, excluding any testimony concerning the stolen nature\n\nof one of the firearms but allowing testimony about the presence of loaded\n\nfirearms in the truck.\n\n At trial, Mr. Hargrove’s strategy was to raise doubt regarding whether he\n\nknew of the drug-trafficking activity and knowingly agreed to participate in it.\n\n 6\n\fSpecifically, during opening statements, Mr. Hargrove’s counsel told the jury that\n\nMs. Richter “arranged this marijuana deal,” R., Vol. III, at 202, that she had\n\nasked to borrow Mr. Hargrove’s vehicle, id., that she told Mr. Hargrove that they\n\nwere going to “camp out” at a fishing hole and “hang out for a few days,” id. at\n\n202–03, and that Mr. Hargrove—without any knowledge of the planned drug-\n\ntrafficking activity—agreed to do that, id. at 203.\n\n However, in eliciting testimony concerning the presence of loaded firearms\n\nin order to undermine this defense, as authorized by the district court, the\n\nprosecution strayed into forbidden territory. In response to the prosecutor’s\n\nquestions, a Border Patrol agent testified that one of the firearms had been stolen:\n\n Q. Agent [], is this -- are these the two individuals that you\n arrested that night?\n A. Yes sir.\n Q. And you notice [Ms. Richter] has also an Oakland Raiders\n decal on her jacket?\n A. Yes, yes, sir.\n Q. Is that basically what the bag was like also with where the\n gun was?\n A. Yeah, it was a black bag with an Oakland Raiders emblem\n on it.\n Q. And the defendant, though, was the one that told you\n where the gun was?\n A. Yes, sir.\n Q. Did you ever ascertain ownership of that gun?\n A. No, sir.\n ....\n Q. Did you eventually ascertain ownership of the gun?\n A. I ran records checks on both weapons and the truck, yes,\n sir.\n Q. And to whom did it come back to?\n A. The truck came back to the defendant. The rifle came\n\n 7\n\f back as a clear weapon and the pistol came back as stolen.\n\nId. at 264–65 (emphasis added).\n\n Mr. Hargrove’s counsel objected and immediately moved for a mistrial,\n\narguing that the testimony about the stolen gun could not be “cure[d] with an\n\ninstruction.” Id. at 265. The district court held a hearing on the issue outside of\n\nthe jury’s presence. The court first asked the agent if he had been instructed not\n\nto testify about the stolen nature of the gun. The agent answered that he had been\n\ninformed to disregard the fact that the gun was stolen, but “misunderstood the\n\nquestion” and stated that he did not “know how to answer [the question] without\n\n. . . not telling the truth.” Id. at 268. The prosecutor admitted “it’s my fault,”\n\nconceding that he did not “frame the question correctly.” Id. Accordingly, the\n\ncourt concluded that the error lay with the prosecutor and that the agent was not\n\nto blame for the utterance. The court subsequently took the motion for a mistrial\n\nunder advisement. See id. at 269 (“[T]his is how I’m going to play it: I am going\n\nto take under advisement the motion to mistrial. I’m going to instruct the jury\n\nwhen they get back that they are to completely disregard the answer. And then\n\nI’m going to see how the testimony proceeds and -- well, we’ll see where it\n\ngoes.”).\n\n The court called the jury back into the courtroom and gave the following\n\ninstruction:\n\n Ladies and gentlemen, in the preliminary instruction this\n\n 8\n\f morning, I told you that if, at some point in the trial, I told you\n to disregard something that you heard, then you couldn’t consider\n that matter in your deliberations later in the trial. Well, that’s\n happened. So right before you left for your break, there was a\n statement made by the agent that one of the firearms may have\n been stolen. The stolen nature of those firearms is not at issue in\n this case. That is not something that you need to consider. In\n fact, I’m going to ask you and expect you to disregard anything\n regarding that firearm or its ownership. That’s not something\n you need to concern yourself with in this trial.\n\n And as we talked this morning, what’s before you are the two\n charges, conspiracy and possession with intent on the marijuana.\n There isn’t any charge related to firearms, their ownership, and\n it would be inappropriate for you to consider those facts in\n addressing the facts that are actually in front of you and the\n elements of the charges that are actually in front of you. So\n please disregard any thought or connection relating to the\n ownership of that firearm.\n\nId. at 284–85 (emphases added). Following that instruction, the trial resumed and\n\nthe prosecutor quickly finished his cross-examination of the agent.\n\n Moreover, the prosecutor took remedial measures during the remainder of\n\nthe trial: specifically, the prosecutor (1) withdrew an exhibit displaying all\n\nweapons retrieved from the truck, see id. at 25 (“[T]he government would not\n\noppose removing [Government’s Exhibit Number 15, i.e., a photo of the guns and\n\nknives] if it will help alleviate some of the damage that was done. So since the\n\njury hasn’t seen it, the government, without objection from defense, will\n\nwithdraw that exhibit.”); (2) did not seek testimony from its expert witness\n\nregarding the use of firearms in the narcotics trade, even though it had filed a\n\nnotice with the court regarding expert testimony in this area; and (3) did not\n\n 9\n\fdiscuss either of the guns during its closing argument.\n\n After the close of all of the evidence but prior to closing arguments, the\n\ndistrict court denied the motion for mistrial, concluding that the prosecutor’s\n\nviolation of the court’s ruling was not “intentional” but rather “was a mistake . . .\n\ncaused by an inartfully asked question.” Id. at 138. The court further concluded\n\nthat, in light of all of the evidence, the improper testimony was not\n\n“consequential.” Id. The defense renewed its objection after the court’s ruling\n\nbut seemed to agree that the prosecutor had not acted in bad faith in eliciting the\n\ntestimony. Id. at 139 (“Obviously, I don’t think the issue of whether it was in bad\n\nfaith or not is really at issue here. What’s at issue is the prejudice of the exact\n\nnature of the testimony that was specifically excluded that came in. And it is of\n\nsuch nature that the only fair remedy to this proceeding would be to declare a\n\nmistrial.”).\n\n Then, after the closing arguments, the court again instructed the jury:\n\n During the trial, I didn’t let you hear answers to some of the\n questions that the lawyers asked and sometimes I ordered you to\n disregard things you saw or heard or I struck things from the\n record. You must completely ignore all of those things. Don’t\n even think about them. Don’t speculate about what a witness\n might have said. These things are not evidence and you’re bound\n by your oath not to let them influence your decision in any way.\n\nId. at 144. After approximately one hour of deliberation, the jury found Mr.\n\nHargrove guilty on both counts.\n\n 2\n\n 10\n\f Following Mr. Hargrove’s conviction, the U.S. Probation Office prepared a\n\nPSR noting that the mandatory-minimum sentence was sixty months’\n\nimprisonment and computing an advisory Guidelines sentencing range of sixty to\n\nsixty-three months’ imprisonment. Id., Vol. II, at 1–15 (PSR, dated Jan. 26,\n\n2017). 2\n\n In his Sentencing Memorandum and Objections to the PSR, Mr. Hargrove\n\nargued that he qualified for the safety valve under U.S.S.G. § 5C1.2 and,\n\ntherefore, his sentence should have been calculated without regard to the\n\notherwise-applicable mandatory minimum. 3 See id., Vol. I, at 40–42\n\n 2\n The Probation Office used the 2016 edition of the Guidelines in\ncalculating Mr. Hargrove’s sentence. Neither party questions this choice on\nappeal; therefore, we also rely on the 2016 edition, to the extent that it is relevant\nto the resolution of the issues on appeal.\n 3\n The Guidelines safety-valve provision (i.e., § 5C1.2) traces back to a\nstatutory safety-valve provision that Congress had enacted, 18 U.S.C. § 3553(f);\nthis provision permits a district court to disregard the otherwise applicable\nstatutory mandatory minimum and to sentence a defendant in accordance with the\nadvisory Guidelines and the sentencing factors of 18 U.S.C. § 3553(a). See, e.g.,\nUnited States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008) (“Section 3553(a)\nmandates consideration of its enumerated factors . . . .”); United States v.\nAltamirano-Quintero, 511 F.3d 1087, 1091 (10th Cir. 2007) (noting that the\nstatutory safety-valve provision “permits the district court to disregard a statutory\nmandatory minimum sentence and instead impose a sentence within the advisory\nsentencing guidelines range”); United States v. Acosta-Olivas, 71 F.3d 375, 379\n(10th Cir. 1995) (“In sum, § 3553(f), as repeated in guideline [U.S.S.G.] § 5C1.2,\nwas clearly intended to permit courts to sentence relatively less culpable\noffenders to sentences below an otherwise applicable mandatory statutory\nminimum sentence.”). In U.S.S.G. § 5C1.2, not only has the Sentencing\nCommission “set[] forth the relevant provisions” of § 3553(f), but it also “has\npromulgated application notes to provide guidance in the application of the\n (continued...)\n\n 11\n\f(Sentencing Mem. & Objs. to PSR, dated Apr. 24, 2017). In particular, Mr.\n\nHargrove disputed whether he had “possess[ed] a firearm or other dangerous\n\nweapon . . . in connection with the offense.” U.S.S.G. § 5C1.2(a)(2). Mr.\n\nHargrove asserted that there was no evidence that the firearms’ presence “had\n\nanything to do with the marijuana transaction”; consequently, Mr. Hargrove\n\nreasoned that he was eligible for safety-valve relief under § 5C1.2. R., Vol. I, at\n\n41. After making other arguments for the application of reductions and a\n\nvariance, Mr. Hargrove requested a sentence of eighteen months’ imprisonment.\n\n During the first of two sentencing hearings, Mr. Hargrove’s counsel argued\n\nthat the transaction resulting in his arrest was not a “typical drug situation” that\n\nwas “real dangerous” because money was not exchanged between the backpackers\n\nand the individual picking up the drugs. Id., Vol. III, at 7 (Sentencing Hr’g Tr.,\n\ndated May 4, 2017). He thus reasoned that Mr. Hargrove would not have needed\n\nto bring a firearm for protection. The district court rejected this argument, noting\n\n\n 3\n (...continued)\nstatute.” U.S.S.G. § 5C1.2, cmt. background. Mr. Hargrove’s safety-valve\nargument before the district court was consistently framed in terms of the\nGuidelines provision, § 5C1.2. Though his opening brief is sprinkled with several\ncitations to the statutory safety-valve provision, § 3553(f), Mr. Hargrove also\nprimarily invokes the rubric of § 5C1.2 in stating his appellate challenge. Aplt.’s\nOpening Br. at 1 (stating the issue for review as whether “Mr. Hargrove\npossess[ed] a firearm in connection with the offenses of which he was convicted,\nsuch that he was ineligible for the safety valve under [U.S.S.G.] § 5C1.2?”).\nGiven that the Guidelines safety-valve provision restates verbatim the relevant\ntext of the statutory safety-valve provision, Mr. Hargrove’s litigation decision on\nthis point is of no moment in our analysis.\n\n 12\n\fthat “[i]f I’m going to my first big drug deal in Rodeo -- in a farm outside Rodeo,\n\nNew Mexico, in the dark of the night with a bunch of guys, backpackers, coming\n\nover the hill, I might think I needed to be protected.” Id. at 8. Mr. Hargrove’s\n\ncounsel also argued that the weapons were unrelated to the offense, as many\n\nindividuals in remote areas carry weapons because of “snakes,” “varmints,” and\n\n“things of that nature.” Id. at 9. The court, however, expressed skepticism,\n\nquestioning “[h]ow many of those [weapons used as protection against animals]\n\n[we]re stolen,” like one of Mr. Hargrove’s guns. Id. Because of the potential for\n\na “big swing” based on the application vel non of the safety valve, the court\n\nrecessed for further research on how to treat the firearms. Id. at 16.\n\n In a written order, the district court denied Mr. Hargrove safety-valve\n\nrelief. Specifically, the district court stated: “The only question at issue is\n\nwhether [Mr. Hargrove] possessed the firearms ‘in connection with the offense.’”\n\nId., Vol. I, at 23 (Mem. Op. and Order, dated May 25, 2017) (quoting 18 U.S.C.\n\n§ 3553(f)). The district court recited the relevant facts: Mr. Hargrove and both\n\nguns were found in the cab of the truck, and most of the marijuana was found\n\nclose by in the truck’s bed; both guns were loaded; and Mr. Hargrove evinced\n\nknowledge of the location of the guns by voluntarily telling the agents about\n\nthem. The district court concluded that “[b]oth [the] proximity and the potential\n\n[of the weapons] to facilitate the offense” established that the weapons were\n\npossessed “in connection with the offense.” Id. at 23–24. The court further\n\n\n 13\n\freasoned that “[e]ven if the firearms did not directly facilitate the drug\n\ntransaction, they certainly had the potential to do so.” Id. at 24. The court\n\nconcluded: “Under these circumstances, Defendant has not met his burden by a\n\npreponderance of the evidence to demonstrate eligibility for the safety valve.\n\nThus, Defendant is subject to the statutory mandatory minimum sentence of 60\n\nmonths.” Id.\n\n The court then held a second sentencing hearing. During his allocution,\n\nMr. Hargrove stated: “I had my guns with me ‘cause I was going to work and I\n\nmight come across a rattlesnake.” Id., Vol. III, at 324 (Sentencing Hr’g Tr., dated\n\nJune 7, 2017). He further stated that at the time of his arrest he “was four and a\n\nhalf feet away from [his] weapon.” Id. at 327. The district court subsequently\n\nsentenced Mr. Hargrove to sixty months’ imprisonment, the applicable\n\nmandatory-minimum sentence. Mr. Hargrove now appeals.\n\n II\n\n We are presented with two issues in this appeal: (1) whether the district\n\ncourt erred in failing to grant Mr. Hargrove’s motion for a mistrial after the\n\nBorder Patrol agent testified about the stolen nature of Mr. Hargrove’s pistol, and\n\n(2) whether the district court erred in failing to grant Mr. Hargrove safety-valve\n\nrelief under U.S.S.G. § 5C1.2. Because we conclude that the district court did not\n\nerr with respect to either issue, we affirm the court’s judgment as to Mr.\n\nHargrove’s conviction and sentence.\n\n\n 14\n\f A\n\n We first address Mr. Hargrove’s assertion that the district court erred by\n\ndenying his motion for a mistrial after the Border Patrol agent testified that the\n\npistol in Mr. Hargrove’s car was stolen, in direct contravention of the district\n\ncourt’s ruling in limine. As discussed below, we conclude that Mr. Hargrove’s\n\narguments in support of this assertion are unavailing.\n\n “We review a district court’s refusal to grant a mistrial for abuse of\n\ndiscretion. The district court has discretion to grant a mistrial only when a\n\ndefendant’s right to a fair and impartial trial has been impaired.” United States v.\n\nMeridyth, 364 F.3d 1181, 1183 (10th Cir. 2004) (citation omitted). “This calculus\n\ncalls for ‘an examination of the prejudicial impact of an error . . . viewed in the\n\ncontext of an entire case.’” United States v. Wells, 739 F.3d 511, 532 (10th Cir.\n\n2014) (quoting Meridyth, 364 F.3d at 1183). “While there are ‘cases where the\n\nprejudicial effect cannot be erased because the evidence is of such a nature that it\n\nnecessarily interferes with the jury’s impartial consideration of other evidence,’\n\n‘[t]he general rule is that the effect of improper evidence may be remedied by\n\nadmonishing the jury to disregard and by withdrawing the evidence.’” Id. at 533\n\n(alteration in original) (quoting United States v. Laymon, 621 F.2d 1051, 1053\n\n(10th Cir. 1980)).\n\n “Under the abuse of discretion standard, a trial court’s decision will not be\n\ndisturbed unless the appellate court has a definite and firm conviction that the\n\n\n 15\n\flower court has made a clear error of judgment or exceeded the bounds of\n\npermissible choice in the circumstances.” United States v. Chanthadara, 230 F.3d\n\n1237, 1248 (10th Cir. 2000) (quoting United States v. Thompson, 908 F.2d 648,\n\n650 (10th Cir. 1990)). Or, put another way, “[w]e will not disturb a district\n\ncourt’s decision to deny a motion for a mistrial unless the decision ‘was based on\n\na clearly erroneous finding of fact or an erroneous conclusion of law or manifests\n\na clear error of judgment.’” United States v. Templeman, 481 F.3d 1263, 1265\n\n(10th Cir. 2007) (quoting United States v. Stiger, 413 F.3d 1185, 1194 (10th Cir.\n\n2005), abrogated in part on other grounds by Alleyne v. United States, 570 U.S.\n\n99, 108 (2013)).\n\n In determining whether a mistrial is necessary “where the prosecutor asked\n\na question her witness answered in a potentially improper way,” the\n\nnonexhaustive set of factors that we consider “include”: (1) whether the\n\nprosecutor acted in bad faith, (2) whether the district court limited the effect of\n\nthe improper statement through its instructions to the jury, and (3) whether the\n\nimproper remark was inconsequential in light of the other evidence of the\n\ndefendant’s guilt. Meridyth, 364 F.3d at 1183. Here, all three factors weigh in\n\nfavor of affirming the district court’s decision.\n\n 1\n\n The parties first dispute whether the prosecutor acted in bad faith in\n\neliciting the Border Patrol agent’s improper testimony about the stolen gun. The\n\n\n 16\n\fdistrict court found no bad faith by the prosecutor, specifically ruling that the\n\nprosecutor did not act in an “intentional” manner in eliciting the improper\n\ntestimony but, rather, made “a mistake,” and that the testimony was “caused by an\n\ninartfully asked question.” R., Vol. III, at 138. We conclude that the district\n\ncourt’s assessment was firmly grounded in the record evidence and legally sound.\n\n We primarily rest our conclusion on two variables that our caselaw has\n\ndeemed to be significant in the bad-faith inquiry. 4 First, we have inquired\n\nwhether “the prosecutor . . . intentionally elicit[ed] the statement in question.”\n\nMeridyth, 364 F.3d at 1184; see United States v. Kamahele, 748 F.3d 984, 1017\n\n(10th Cir. 2014) (discerning no bad faith in part because “[t]he mistake\n\nappear[ed] to be innocent”). And, second, we have noted whether the prosecutor\n\nacknowledged the improper character of the testimony and took steps to mitigate\n\nits prejudicial effects. See Wells, 739 F.3d at 533 (affirming denial of a motion\n\n 4\n During oral argument on the motion for mistrial before the district\ncourt, Mr. Hargrove’s trial counsel seemed to concede that the prosecutor did not\nact in bad faith. See R., Vol. III, at 139 (“Obviously, I don’t think the issue of\nwhether it was in bad faith or not is really at issue here. What’s at issue is the\nprejudice of the exact nature of the testimony that was specifically excluded that\ncame in.”). The government acknowledges this apparent concession here but does\nnot argue that it is dispositive. See Aplee.’s Resp. Br. at 24 (“Contrary to\nHargrove’s assertion of bad faith on appeal, as Hargrove’s trial counsel\nacknowledged and as the district court found, the government did not act in bad\nfaith in asking the questions that it did.”). In light of the government’s approach,\nwe are content to accord the apparent concession of Mr. Hargrove’s counsel on\nthe bad-faith issue little weight in our analysis, though it is not irrelevant. It is\nsimply noteworthy in passing that Mr. Hargrove’s trial counsel, who saw the\nprosecutor’s questioning of the agent in real time—just as the trial judge did—did\nnot at that time view the prosecution’s conduct as evidencing bad faith.\n\n 17\n\ffor mistrial in part because the “prosecutor attempted to change the subject\n\nimmediately after” the inappropriate testimony); cf. Meridyth, 364 F.3d at 1184\n\n(noting that the prosecutor’s failure to fully acknowledge the improper nature of\n\nthe testimony “somewhat belied” her “ostensibly innocent explanation” for\n\neliciting the testimony).\n\n Turning to the first variable, though it is undisputed that the prosecutor’s\n\nquestions elicited the improper, stolen-gun testimony, the district court did not\n\nclearly err in finding that the prosecutor did so inadvertently (i.e., by mistake),\n\nnot with bad intent. See Meridyth, 364 F.3d at 1184. The Border Patrol agent\n\nstated that the prosecutor told him not to testify about the stolen nature of the\n\ngun. See R., Vol. III, at 268. The fact that the prosecutor specifically instructed\n\nthe agent not to testify about the stolen nature of the gun significantly undermines\n\nany notion that the prosecutor’s intent was to put the improper testimony before\n\nthe jury. See Kamahele, 748 F.3d at 1017 (concluding that the prosecutor’s\n\n“mistake appear[ed] to be innocent [because] the prosecutor informed the district\n\ncourt that she had previously instructed the witness not to discuss” the improper\n\ntestimony).\n\n In response, Mr. Hargrove points to the fact—ostensibly suggestive of ill\n\nintent—that the prosecutor repeatedly inquired about the ownership of the gun\n\nbefore the agent uttered the improper testimony. But, at least under the\n\ncircumstances here, this tells us virtually nothing about whether the prosecutor\n\n\n 18\n\facted with bad intent or was simply careless and persistently so.\n\n And, in this factual setting, we view the second variable—the prosecutor’s\n\nconduct in acknowledging the improper character of the testimony and taking\n\nsteps to mitigate its prejudicial effects—as strongly indicating that the prosecutor\n\ndid not act in bad faith. First, in the immediate aftermath of the improper\n\ntestimony, the prosecutor admitted that his questioning was unclear and that he\n\nwas at fault for causing the testimony to be uttered. See R., Vol. III, at 268 (“I\n\nthink it’s my fault because I didn’t ask [the pertinent questions] clear[ly] enough.\n\nBut I didn’t intend to violate the order. I just didn’t -- I didn’t frame the question\n\ncorrectly.”). This immediate acceptance of responsibility—while certainly not\n\ndispositive—provides some support for the conclusion that “the prosecutor did\n\nnot intentionally elicit the statement in question.” Meridyth, 364 F.3d at 1184.\n\nIndeed, the prosecutor’s conduct here contrasts markedly with the prosecutor’s\n\nconduct in Meridyth. There, instead of immediately accepting responsibility for\n\nadducing the improper testimony, the prosecutor spent much of her “response to\n\nthe motion for a mistrial” trying to convince the court that there actually was an\n\nevidentiary basis for the introduction of the testimony; the prosecutor could\n\nreasonably be understood from this line of argument as saying that, even if she did\n\nintend to adduce the testimony, her conduct would not have been improper. Id.\n\nWe concluded in Meridyth that the prosecutor’s approach “somewhat belied” her\n\n“ostensibly innocent explanation,” which was based on the view that she did not\n\n\n 19\n\factually intend to adduce the testimony. Id. In short, the prosecutor’s immediate\n\nacceptance of responsibility here is significantly probative of the prosecutor’s\n\nlack of bad faith.\n\n We view in a similar light the prosecutor’s efforts to mitigate the\n\nprejudicial effects of the improper testimony throughout the remainder of the\n\ntrial. Once he resumed the examination of the agent (i.e., following the improper\n\nutterance), the prosecutor immediately veered his questioning away from the\n\nstolen gun and began inquiring about other issues; he thereafter quickly ended his\n\nexamination of the agent:\n\n Q. Agent [], did you find any binoculars in the vehicle?\n A. There was a set of night-vision goggles inside the vehicle.\n Q. Where in the vehicle were they?\n A. I don’t recall. I did not locate them, myself.\n [Prosecutor]: I’ll pass the witness, Your Honor.\n\nR., Vol. III, at 285. Such a dramatic shift supports the district court’s finding that\n\nthe prosecutor did not intend to put the improper testimony before the jury in the\n\nfirst place. See Wells, 739 F.3d at 533. Furthermore, moving past the immediate\n\naftermath of the improper testimony, the prosecution went to great lengths to limit\n\nany damage caused by the testimony by taking the following steps: (1)\n\nwithdrawing an exhibit that displayed all of the weapons retrieved from the truck;\n\n(2) forgoing testimony from its expert witness regarding the use of firearms by\n\ndrug traffickers to safeguard their narcotics loads, even though it had given notice\n\nof expert testimony to this effect; and (3) avoiding any discussion of the guns\n\n\n 20\n\fduring its closing argument. In sum, the prosecutor’s actions—both immediately\n\nafter eliciting the improper testimony and throughout the remainder of the\n\ntrial—clearly evince a strong intent to mitigate any prejudicial effects of the\n\nimproper testimony, rather than an intent to highlight or cement such effects.\n\nSuch remedial efforts strongly suggest that the prosecution did not intend to elicit\n\nthe improper testimony to begin with.\n\n To be sure, we noted in Meridyth that one of the “helpful” inquiries\n\n“subsumed within the ‘bad faith’ factor” is whether the prosecutor’s “line of\n\nquestioning was reasonable.” 364 F.3d at 1183 n.3. Mr. Hargrove underscores\n\nthis point, arguing that “there was no reason for this [i.e., the prosecutor’s] line of\n\nquestioning” and that “the line of questioning was wholly unreasonable.” Aplt.’s\n\nOpening Br. at 27–28. In response, the government contends that the prosecutor’s\n\nquestioning was designed (albeit inartfully) to establish that Mr. Hargrove had\n\nclaimed ownership of the firearms, in order (1) to show that he was aware of the\n\ndrug transaction that was going on, and (2) to avoid the jury drawing an incorrect\n\ninference from the testimony that immediately preceded the ownership line of\n\nquestioning—that is, testimony about Ms. Richter wearing an Oakland Raiders\n\njacket with an emblem that matched the one on the Oakland Raiders bag\n\ncontaining the pistol. More specifically, the government contends that the\n\nprosecutor apparently reasoned that “the jury could have inferred [wrongly from\n\nthe fact that the bag displayed the same Oakland Raiders emblem as Ms. Richter’s\n\n\n 21\n\fjacket] that it was Richter’s bag and Richter’s firearm, even though Hargrove was\n\naware of the location of the firearm.” Aplee.’s Resp. Br. at 20. Accordingly, the\n\ngovernment argues that the testimony was relevant to undermine Mr. Hargrove’s\n\ndefense theory that Ms. Richter planned the entire event and that he agreed to go\n\nalong on the trip with lawful purposes in mind, without knowledge of the drug-\n\ntrafficking activity.\n\n On this specific point, however, we are not persuaded by the government’s\n\nargument. Recall that, among other things, the prosecutor asked the agent with\n\nrespect to the pistol: “Did you ever ascertain ownership of that gun?” and “[T]o\n\nwhom did it come back to?” R., Vol. III, at 264–65. Under these circumstances,\n\nwe are hard-pressed to discern the relevancy of any testimony regarding the legal\n\nownership of the pistol. Indeed, if the prosecutor just wanted to establish for the\n\njury that it was Mr. Hargrove—not Ms. Richter—who possessed the pistol and\n\nbrought it to the drug transaction (with the attendant inference that Mr. Hargrove\n\nknew drug-trafficking activity was going on and needed the firearm to protect it),\n\nthe prosecutor could have simply asked the agent if he knew whether anyone laid\n\nclaim to the pistol during the arrests and investigation of the crime. And the\n\nagent almost certainly would have responded that Mr. Hargrove did so.\n\n Based on the foregoing, we therefore do not find the government’s\n\nargument regarding the reasonableness of its line of questioning persuasive.\n\nHowever, the prosecution can act unreasonably without acting in bad faith. Given\n\n\n 22\n\fthe totality of the circumstances here, we reject Mr. Hargrove’s suggestion that\n\nthis one factor “weighs heavily in favor of a finding that the Government acted in\n\nbad faith.” Aplt.’s Opening Br. at 28. As noted, the district court’s finding that\n\nthe prosecutor elicited the improper testimony through inadvertence—rather than\n\nintentionally—is firmly supported by the record, and the prosecutor’s conduct in\n\npromptly acknowledging the improper character of the testimony and taking steps\n\nto mitigate its prejudicial effects strongly supports the conclusion that the\n\nprosecutor did not act at the outset in bad faith in eliciting the improper\n\ntestimony. In light of these circumstances, we feel confident in rejecting any\n\nsuggestion that the prosecutor’s questioning amounted to “a gratuitous attempt to\n\nimproperly influence the jury” through placing improper testimony before it about\n\nthe stolen nature of the pistol. Meridyth, 364 F.3d at 1184. More generally,\n\nconsidering all of the circumstances, we conclude that the prosecutor did not act\n\nin bad faith, and that this criterion weighs heavily in the government’s favor.\n\n 2\n\n We next consider whether the district court’s instructions following the\n\ntestimony about the stolen gun “limited the effect of the improper statement . . .\n\nto the jury.” Meridyth, 364 F.3d at 1183. We conclude that this factor also\n\nweighs heavily in the government’s favor.\n\n We presume that jurors “follow their instructions.” Id. at 1184; United\n\nStates v. Lamy, 521 F.3d 1257, 1266 (10th Cir. 2008) (“We presume that jurors\n\n\n 23\n\fwill follow clear instructions to disregard evidence . . . .” (quoting United States\n\nv. Caballero, 277 F.3d 1235, 1243 (10th Cir. 2002))). However, this presumption\n\nmay be overcome: “[W]here the character of the testimony is such that it will\n\ncreate so strong an impression on the minds of the jurors that they will be unable\n\nto disregard it in their consideration of the case, although admonished to do so, a\n\nmistrial should be ordered.” Maestas v. United States, 341 F.2d 493, 496 (10th\n\nCir. 1965); see also Lamy, 521 F.3d at 1266 (noting that the presumption applies\n\n“unless there is an overwhelming probability that the jury will be unable to follow\n\nthe court’s instructions, and a strong likelihood that the effect of the evidence\n\nwould be devastating to the defendant” (quoting Caballero, 277 F.3d at 1243)).\n\n Mr. Hargrove contends that the agent’s improper testimony made the “sort\n\nof strong impression” described in Maestas, Aplt.’s Opening Br. at 31, but his\n\nassertions on this issue are entirely conclusory. He vaguely references his\n\nopening brief’s “discussion of the third factor” (i.e., of whether the agent’s\n\ntestimony was inconsequential), id., without ever mentioning what components of\n\nthis discussion are relevant under Maestas. Indeed, he never again mentions\n\nMaestas, nor does he discuss its facts or analyze what “character of . . .\n\ntestimony” is necessary to give rise to the kind of “strong impression” that a jury\n\nmight be unable to disregard. Maestas, 341 F.2d at 496. Therefore, we view Mr.\n\nHargrove’s contention as waived. See, e.g., United States v. Pursley, 577 F.3d\n\n1204, 1231 n.17 (10th Cir. 2009) (noting that a “skeletal reference does not\n\n\n 24\n\fpresent a cognizable issue for appellate review”); accord United States v. Gordon,\n\n710 F.3d 1124, 1144 n.22 (10th Cir. 2013). And we properly turn our attention to\n\nassessing the import of the district court’s instructions, which we presume the\n\njury followed.\n\n As noted above, the district court gave two limiting instructions, one\n\ndirectly in the wake of the improper testimony and one after the close of\n\nevidence. In brief, in its instructions, the court told the jury both (1) to disregard\n\nthe specific testimony about the stolen nature of the pistol, and (2) to completely\n\nignore any and all inferences regarding the pistol—with the clear aim of giving\n\nthe agent’s testimony no influence in the jury’s decision-making. In other words,\n\nthe court effectively instructed the jurors to act as if they had never heard the\n\nstolen-gun testimony and to avoid thinking about that testimony.\n\n Despite the seeming clarity of those instructions, Mr. Hargrove asserts that\n\nthe district court’s approach was inadequate because the court did not\n\n“specifically and expressly indicate[]” that the jury should not reach the\n\n“potential conclusion” that “by virtue of possessing a stolen gun, Mr. Hargrove’s\n\ncharacter was that of a criminal and he had a propensity to commit criminal acts.”\n\nAplt.’s Opening Br. at 29. He further contends that the court should have “also\n\nspecifically instruct[ed] the jury to refrain from considering the evidence as proof\n\nof [his] criminal propensity.” Aplt.’s Reply Br. at 8. In support of his position,\n\nMr. Hargrove cites to both Meridyth and United States v. Hardwell, 80 F.3d 1471\n\n\n 25\n\f(10th Cir.), modified in part on reh’g, 88 F.3d 897 (10th Cir. 1996). However,\n\nneither of those cases supports his position.\n\n More specifically, Mr. Hargrove argues that the district court’s instructions\n\nin this case were “confusing and not particular enough” when compared to the\n\ndistrict court’s instructions in Meridyth because they did not specify which\n\ninference the jury could not make—viz., it could not infer from the stolen nature\n\nof the gun that Mr. Hargrove had a propensity towards crime. Aplt.’s Opening\n\nBr. at 29. In Meridyth, the panel observed that, after testimony was elicited from\n\nwhich the jury could have inferred that the defendant threatened a witness, the\n\ndistrict court “took great pains to instruct the jury not to infer” that such a threat\n\nhad taken place and that the effect of such instructions “in th[at] case” was to\n\n“preclude the improper inference” of the threat. 5 Meridyth, 364 F.3d at 1184.\n\n 5\n To provide helpful context, we reproduce below the salient aspects of\nthe district court’s instructions quoted in Meridyth:\n\n After an exhaustive discussion with counsel and my own\n examination of this witness out of your hearing, I have\n determined a couple of things.\n\n First, it appears that the United States Attorney asked the\n question regarding why this witness moved to, in part, explain\n why the United States Government, through the United States\n Attorney’s Office, has provided $1000 in assistance for this\n individual to move. You will recall that the witness said he\n moved because of threats made against him.\n\n In part, an inference that you could draw from that statement was\n that the threats were made by [a co-defendant] and Mr. Meridyth.\n (continued...)\n\n 26\n\fJuxtaposed with the Meridyth court’s specific instructions, Mr. Hargrove\n\nmaintains, the district court’s instructions here were inadequate. We disagree.\n\n The district court’s instructions here actually had a broader prophylactic\n\nscope than the ones in Meridyth; they necessarily reached not only the specific\n\ninference relating to the stolen-gun that concerned Mr. Hargrove—i.e., the\n\ninference that he possessed a criminal propensity—but each and every other\n\ninference relating to the testimony about the gun. Recall that the court explicitly\n\nand unequivocally instructed the jury to “to disregard anything regarding that\n\nfirearm or its ownership.” R., Vol. III, at 284 (emphasis added). Anything means\n\nanything. More specifically, anything would include any criminal-propensity\n\ninferences stemming from the stolen nature of the gun. Moreover, the court did\n\nnot take any chances that the jury might not comprehend its all-encompassing\n\ninstructions that the jury should put out of mind any inferences related to the\n\n\n\n 5\n (...continued)\n I am telling you now that that would be an improper inference,\n based on all of the information I now know. You will recall that\n this witness was working on at least 40 cases with the drug task\n force. That gives this witness ample opportunity to make a lot of\n enemies.\n\n While I have no reason to doubt that—the likelihood that what\n motivated him to move were threats, it can’t be said, based on\n any credible evidence now known to the Court that those threats\n can be connected to these defendants. And you may not infer that\n they do, based on the evidence we now have.\n\n364 F.3d at 1182–83 (quoting the record).\n\n 27\n\fstolen firearm—including possible inferences regarding Mr. Hargrove’s criminal\n\npropensities. The court expressly and specifically emphasized that the jury was\n\nnot to consider “a statement made by the agent that one of the firearms may have\n\nbeen stolen.” Id. Thus, based on the court’s instructions, we presume the jury\n\nunderstood that it was obliged not to consider any inferences based on the\n\ntestimony about the stolen firearm; this would necessarily include an inference\n\nthat Mr. Hargrove possessed a criminal propensity because the pistol was stolen. 6\n\n Mr. Hargrove’s only retort to this seems to be that the instructions were\n\n“confusing” because they “appear[ed] to only indicate that the testimony . . .\n\ncould not be used to find Mr. Hargrove guilty of the charged offenses.” Aplt.’s\n\nOpening Br. at 29. Mr. Hargrove is correct that the court’s instructions\n\n\n\n 6\n Our decision in Wells, moreover, underscores the adequacy of the\ncourt’s instructions. There, the subject of the defendant’s motion for mistrial was\na witness’s improper testimony that prior to trial the defendant had been offered\n“a plea offer” (which he presumably rejected). 739 F.3d at 532. In upholding the\ndistrict court’s denial of the motion, we observed that the court’s “curative\ninstruction . . . was ‘clear and concise and pertained to testimonial evidence from\na single witness that was amenable to easy segregation in the minds of the jury.’”\nId. at 533 (quoting Caballero, 277 F.3d at 1243). Yet, that instruction simply\nstated: “Ladies and gentlemen, disregard that last answer. I’ll strike it from the\nrecord. We’re getting into an area that’s not proper for jury consideration.” Id. at\n532. Recognizing (as we do) that the adequacy of instructions must be\nunderstood in light of all of the circumstances of a particular case, it nevertheless\nwould strain credulity to believe that, after endorsing this brief curative\ninstruction in Wells, this court should conclude here that the district court’s\nbroadly protective instructions—that obliged the jury to completely disregard the\nstolen-gun testimony and any inferences related to it—were not sufficiently clear\nor otherwise adequate to cure any prejudice. Notably, Mr. Hargrove’s reply brief\ndoes not respond to the government’s similar argument based on Wells.\n\n 28\n\fspecifically cautioned the jury that the stolen-gun testimony was not relevant to\n\nits consideration of the charged crimes:\n\n [W]hat’s before you are the two charges, conspiracy and\n possession with intent on the marijuana. There isn’t any charge\n related to firearms, their ownership, and it would be\n inappropriate for you to consider those facts in addressing the\n facts that are actually in front of you and the elements of the\n charges that are actually in front of you.\n\nR., Vol. III, at 284. But in virtually the same breath the court spoke more\n\nbroadly, saying “please disregard any thought or connection relating to the\n\nownership of that firearm.” Id. at 284–85 (emphasis added). And this advisement\n\nmust be read in the context of court’s earlier instructions to the jury, which made\n\nplain that it must “disregard anything regarding that firearm or its ownership.”\n\nId. at 284 (emphasis added). Thus, the district court’s instructions here actually\n\ncast a wider protective net than the ones that we approved of in Meridyth.\n\nCaptured within this net was precisely the concern that Mr. Hargrove points to\n\nhere—viz., the concern that the jury might infer that he had criminal propensities\n\nfrom the stolen nature of the firearm. Taking all of these instructions into\n\naccount, we are hard-pressed to understand how a reasonable jury could have not\n\nunderstood that, not only could it not consider the stolen-gun testimony in finding\n\nhim guilty of the charged offenses, but it also could not use this testimony for any\n\npurpose. 7 In sum, Mr. Hargrove’s arguments based on the trial court’s\n\n 7\n In any event, we question what material prejudice Mr. Hargrove\n (continued...)\n\n 29\n\finstructions in Meridyth are unavailing.\n\n Lastly, Mr. Hargrove’s reliance on our decision in Hardwell is another\n\nwrong note in Mr. Hargrove’s tune of criminal-propensity error, which we may\n\naddress in short order. Specifically, Mr. Hargrove turns to Hardwell to support\n\nhis contention that the district court erred by not sua sponte specifically\n\ninstructing the jury to disregard any inference arising from the stolen-gun\n\ntestimony that Mr. Hargrove had a propensity to commit crimes. In this regard,\n\nquoting from Hardwell, 80 F.3d at 1491, Mr. Hargrove notes that we have\n\n“previously held that a district court committed error by failing to advise the jury\n\n. . . in a limiting instruction” that prior uncharged misconduct cannot be used as\n\nproof of criminal propensity. See Aplt.’s Opening Br. at 30 (quoting Hardwell’s\n\nobservation that “the court’s instructions did not expressly advise the jury that it\n\ncould not consider prior misconduct as proof of criminal disposition or\n\npropensity, which is what Rule 404(b) is intended to prevent”).\n\n However, Hardwell is inapposite: it expressly relates to a district court’s\n\n\n\n 7\n (...continued)\ncould claim even if the jury did feel free to infer from the stolen gun-testimony\nthat he had criminal propensities, so long as it also felt obliged to honor the\ncourt’s instructions not to use this inference in determining whether he was guilty\nof the charged offenses. Put another way, even if the court’s instructions gave the\njury the leeway (which they did not) to infer from the stolen-gun testimony that\nMr. Hargrove had tendencies to be a scofflaw, it is hard to see how Mr. Hargrove\ncould have been materially prejudiced by such an inference, if the jury stayed true\nto the court’s instructions and did not use this inference in determining his guilt\nof the charged offenses.\n\n 30\n\ffailure to employ appropriate limiting instructions in admitting prior wrongful-\n\nacts evidence under Federal Rule of Evidence 404(b), and on appeal “[a]ll four\n\ndefendants contend[ed] the trial court abused its discretion by admitting evidence\n\nof prior bad acts” under that rule. 80 F.3d at 1488. The evidence before the jury\n\nwas admissible for some purposes, but not others. Id. at 1491 (“[A]lthough it\n\ncould consider the evidence of Dennis’ and Marcel’s prior misconduct as proof of\n\nthe money laundering charge and 1992 cocaine sale charges, it could not consider\n\nthat evidence as proof of the conspiracy, except to the extent that it proved\n\nintent.”). Here, on the other hand, the district court did not admit the disputed\n\ntestimony for any purpose; it expressly excluded it. Therefore, there was no need\n\nfor the court to even consider providing a more specific limiting instruction\n\nregarding the testimony, as in Hardwell. Under the district court’s instructions,\n\nthe jury could not consider the stolen-gun testimony for any purpose—full stop.\n\nHardwell is thus inapposite.\n\n Accordingly, because the district court’s instructions unequivocally\n\nadmonished the jury that it could not consider the testimony or any inferences\n\nstemming from it, and because it is permissible to presume here that the jurors\n\nfollowed the court’s instructions, see Lamy, 521 F.3d at 1266, this factor weighs\n\nheavily in the government’s favor.\n\n 3\n\n Finally, we consider whether the improper remark was inconsequential in\n\n\n 31\n\flight of the other evidence of the defendant’s guilt. See Meridyth, 364 F.3d at\n\n1183. This factor strongly undermines Mr. Hargrove’s position and, combined\n\nwith the two other factors discussed above, firmly closes the door on his mistrial\n\nchallenge.\n\n The crux of Mr. Hargrove’s argument is that the improper stolen-gun\n\ntestimony “completely reframed the way the jury viewed [him],” Aplt.’s Opening\n\nBr. at 33, because “the jury would [have] likely view[ed] him as a ‘bad’ man, the\n\nkind of man that would [have been] involved in a scheme to possess and distribute\n\nmarijuana – without regard to the actual evidence presented,” id. at 32–33.\n\nHowever, the weight of the “actual evidence” against Mr. Hargrove—which\n\nundermined his defense theory that he had no knowledge of the drug-trafficking\n\nactivity afoot—would have rendered any prejudice from the stolen-gun testimony\n\ninconsequential.\n\n Although the trial presented considerable evidence that pointed towards Mr.\n\nHargrove’s guilt, we need not detail it all here. That is because, even standing\n\nalone, two lines of unchallenged evidence clearly incriminated Mr. Hargrove in\n\nthe charged drug trafficking, and a reasonable jury could have concluded that this\n\nevidence convincingly belied Mr. Hargrove’s defense theory predicated on his\n\nunawareness of that activity. More specifically, without more, these two lines of\n\nevidence established that “nothing about [the Border Patrol agent’s improper]\n\ncomment changed the basic nature of [Mr. Hargrove’s] trial.” United States v.\n\n\n 32\n\fKravchuk, 335 F.3d 1147, 1155 (10th Cir. 2003). 8\n\n First, and perhaps most damning, is the testimony from one of the\n\nbackpackers, Mr. Silvas-Hinojos. During trial, Mr. Silvas-Hinojos testified that\n\nMr. Hargrove himself met the backpackers when they arrived and personally took\n\nmarijuana that Mr. Silvas-Hinojos was carrying; that Mr. Hargrove arranged the\n\nbundles of marijuana on the bed of the truck and covered the bundles with a tarp;\n\nand that Mr. Hargrove put one bundle of marijuana in the backseat of the truck\n\nbecause the stack of bundles in the truck bed was “too high.” R., Vol. III, at\n\n310–13. Significantly, Mr. Silvas-Hinojos’s testimony on these matters was left\n\nentirely without specific challenges during the course of the trial. As such, that\n\nundisputed testimony unequivocally indicated that Mr. Hargrove knew of and\n\nactively participated in the drug exchange, undercutting his defense theory and\n\n 8\n In assessing the weight of the government’s evidence and the related\neffect of the agent’s improper stolen-gun testimony, we do not factor into the\ncalculus the dubious testimony of Mr. Hargrove’s co-defendant, Ms. Richter. The\ngovernment asserts that Ms. Richter’s testimony undermines Mr. Hargrove’s\ndefense theory because she testified that Mr. Hargrove was the one who arranged\nthe marijuana deal. To be sure, Ms. Richter, during her direct examination, did\nfinger Mr. Hargrove as the brains behind the operation. However, we question\nthe reliability of this ostensibly incriminating testimony because Ms. Richter\nadmitted that she had taken full responsibility for all of the events that occurred\nand wholly exculpated Mr. Hargrove in her plea agreement. See R., Vol. III, at\n97 (testifying that she (i.e., Ms. Richter) had previously stated that she, and not\nMr. Hargrove, had planned the drug transaction and that she planned it because\nshe was in need of money). Given that the two lines of unchallenged evidence\ndiscussed above unequivocally pointed the jury to Mr. Hargrove’s\nguilt—rendering the effect of the agent’s improper stolen-gun testimony\ninconsequential—we need not rely on Ms. Richter’s dubious testimony to support\nour analysis here.\n\n 33\n\fpointing directly toward a guilty verdict. Notably, Mr. Hargrove likewise fails to\n\naddress the significance of this testimony on appeal.\n\n Second, the government presented testimony from numerous agents\n\nthroughout trial that Mr. Hargrove’s defense that he thought the marijuana (all\n\n297 pounds of it) was alfalfa was incredible because alfalfa and marijuana smell\n\nnothing alike and are packaged in entirely distinct ways. See, e.g., id. at 47 (“Q.\n\nDid you notice anything when [Ms. Richter] rolled down the window? A. I could\n\nimmediately smell the smell of marijuana. Q. Have you spent any time around\n\nalfalfa, [agent]? A. A little bit. My aunt had a cattle farm down in Mexico,\n\ngrowing up. I’ve been around it. And also, through the work here, I’ve seen it.\n\nQ. Does it smell anything like marijuana? A. No, it does not.”); see also id. at\n\n65–66 (testifying that alfalfa is not packaged the same way as marijuana:\n\n“[Alfalfa is] actually not packaged. It’s kind of bounded [sic] together by wire.\n\nAs far as I know, they try to keep all the moisture out of it because if it gets wet\n\nor whatever . . . it spoils, so . . . they try to keep it open-air”); id. at 66–67 (“Q.\n\nAnd in your 12 years as a law enforcement officer, have you encountered a lot of\n\nmarijuana? A. Yes, sir. Q. Do you know what marijuana smells like? A. I do.\n\nQ. In your experience, does alfalfa smell like marijuana? A. Not at all”); id. at\n\n238 (after testifying that the marijuana was packaged in bundles, an agent further\n\ntestifying: “Q. Have you seen alfalfa before? A. Yes, sir, I have. Q. In your\n\nexperience, how is alfalfa packaged? A. Usually, three strand wires, maybe four\n\n\n 34\n\fstrands, sometimes twine”). The ample testimony on this front would have made\n\npatent to the jury that Mr. Hargrove’s defense was based on a far-fetched\n\nassertion that he mistakenly believed that the marijuana was alfalfa. Again, Mr.\n\nHargrove does not raise any specific challenge to this testimony on appeal.\n\n Thus, we believe that these two lines of evidence, taken by themselves,\n\nstrongly and convincingly directed the jury to a guilty verdict. Therefore, we are\n\nquite confident that any “improper effect [the Border Patrol agent’s] intimations\n\nmay have had on the jury . . . pales in comparison to the total weight of the\n\ngovernment’s evidence.” Lamy, 521 F.3d at 1266. Accordingly, we conclude that\n\nthis factor too weighs in favor of affirming the district court’s denial of Mr.\n\nHargrove’s motion for mistrial.\n\n ***\n\n In light of the above analysis, and given that all three factors of the\n\nMeridyth test weigh in favor of the government, we conclude that the district\n\ncourt did not abuse its discretion in denying Mr. Hargrove’s motion for a mistrial.\n\n B\n\n We now turn to Mr. Hargrove’s second challenge: he contends that the\n\ndistrict court erred when it did not grant him a U.S.S.G. § 5C1.2 safety-valve\n\nadjustment during sentencing. More specifically, Mr. Hargrove argues that the\n\ndistrict court “erred by considering only Mr. Hargrove’s possession of the\n\nfirearms and their and his proximity to the marijuana, without taking into account\n\n\n 35\n\fMr. Hargrove’s own conduct.” Aplt.’s Opening Br. at 7. We disagree and affirm\n\nthe district court’s safety-valve ruling. In the following discussion, we recount\n\n(1) the district court’s ruling, (2) our standard of review, (3) the legal framework\n\ngoverning our analysis, and (4) how that framework applies in this case.\n\n 1\n\n Generally, the district court evaluated whether Mr. Hargrove possessed the\n\nfirearms “in connection with the offense,” U.S.S.G. § 5C1.2(a)(2), by looking to\n\ntheir “proximity and potential to facilitate the offense.” R., Vol. I, at 24 (quoting\n\nUnited States v. Andrade-Vargas, 459 F. App’x 762, 767 (10th Cir. 2012)\n\n(unpublished)). Applying that rubric, the district court concluded that Mr.\n\nHargrove was not eligible for the safety-valve reduction because (1) the firearms\n\nwere located “in the cab of the pickup truck with Defendant and the marijuana,”\n\nand thus were in close proximity to the drug trafficking, and (2) the firearms “had\n\nthe potential” to facilitate the drug trafficking, even if the firearms did not do so\n\ndirectly. Id.\n\n More specifically, the district court highlighted several facts in support of\n\nits decision, including: that Mr. Hargrove, the drugs, and both guns were all in the\n\ncab of the pickup truck—with the pistol on the dashboard and the rifle behind the\n\nfront seat; that both guns were loaded; and that Mr. Hargrove evinced knowledge\n\nof the location of the guns, since he voluntarily told the agents about them. The\n\ncourt expressly took note of Mr. Hargrove’s exculpatory statements “that he had\n\n\n 36\n\fno knowledge of the marijuana, he was in the area to fish, and he thought the\n\nbundles of marijuana were alfalfa,” but effectively declined to credit those\n\nstatements, finding instead that “[t]he presence of firearms was not coincidental\n\nor entirely unrelated to the drug transaction.” Id. at 22, 24; see also id., Vol. III,\n\nat 8 (regarding the presence of the guns, the district court stated: “If I’m going to\n\nmy first big drug deal in Rodeo -- in a farm outside Rodeo, New Mexico, in the\n\ndark of the night with a bunch of guys, backpackers, coming over the hill, I might\n\nthink I needed to be protected”). In sum, the district court determined that Mr.\n\nHargrove “ha[d] not met his burden by a preponderance of the evidence to\n\ndemonstrate eligibility for the safety valve” and thus he was “subject to the\n\nstatutory mandatory minimum sentence of 60 months.” Id., Vol. I, at 24.\n\n 2\n\n We review the district court’s denial of U.S.S.G. § 5C1.2 safety-valve\n\nrelief for clear error, “giving due deference to the district court’s application of\n\nthe Sentencing Guidelines to the facts.” United States v. Zavalza-Rodriguez, 379\n\nF.3d 1182, 1184 (10th Cir. 2004). “Clear error exists if a factual finding ‘is\n\nwholly without factual support in the record, or after reviewing the evidence, we\n\nare definitively and firmly convinced that a mistake has been made.’” United\n\nStates v. Hooks, 551 F.3d 1205, 1217 (10th Cir. 2009) (quoting United States v.\n\nIvory, 532 F.3d 1095, 1103 (10th Cir. 2008)). And this deferential standard of\n\nreview “applies equally regardless of whether the district court’s factual findings\n\n\n 37\n\fare based on credibility determinations or on documentary evidence.” La\n\nResolana Architects, PA v. Reno, Inc., 555 F.3d 1171, 1177 (10th Cir. 2009);\n\naccord United States v. Little, 60 F.3d 708, 713 (10th Cir. 1995); see also United\n\nStates v. Galvon-Manzo, 642 F.3d 1260, 1270–71 (10th Cir. 2011) (observing, in\n\nanalyzing defendant’s challenge to safety-valve determination, that although\n\ndistrict court’s evaluation of attorney reports did not evaluate the defendant’s\n\ncredibility “in the typical sense, the court was considering the truthfulness and\n\n‘credibility’ of all the information he provided in various ways to the government\n\nand to the court,” and declining to disturb the district court’s “obvious[]”\n\ndetermination that defendant was not trustworthy).\n\n 3\n\n a\n\n Congress has enacted mandatory-minimum sentencing provisions for many\n\ndifferent crimes, including the drug-trafficking offenses at issue here. See, e.g.,\n\n21 U.S.C. §§ 841(a)(1), (b)(1)(B). However, Congress has “refine[d]” the\n\noperation of those mandatory-minimum provisions for “the least culpable\n\nparticipants” in federal drug-trafficking offenses by creating an exception to\n\nmandatory-minimum sentences, known as the safety valve, which applies when\n\ndefendants meet certain criteria. H.R. R EP . N O . 103-460, at 3 (1994), 1994 WL\n\n107571; see 18 U.S.C. § 3553(f); see also United States v. Pena-Sarabia, 297\n\nF.3d 983, 988 (10th Cir. 2002) (“The basic purpose of the safety valve was ‘to\n\n\n 38\n\fpermit courts to sentence less culpable defendants to sentences under the\n\nguidelines, instead of imposing mandatory minimum sentences.’” (quoting\n\nAcosta-Olivas, 71 F.3d at 378)); accord United States v. Brooks, 722 F.3d 1105,\n\n1108 (8th Cir. 2013) (“In the safety valve statute and parallel advisory guidelines\n\nprovision, ‘Congress provided relief for less culpable drug offenders from its\n\nharsh mandatory minimum sentences.’” (quoting United States v. Tournier, 171\n\nF.3d 645, 646 (8th Cir. 1999))).\n\n At Congress’s direction, the Sentencing Commission has inserted the safety\n\nvalve provision into the Guidelines. See U.S.S.G. § 5C1.2, cmt. background.\n\nSection 5C1.2(a) provides relief under the safety valve if the defendant can meet\n\nthe following criteria:\n\n (1) the defendant does not have more than 1 criminal history\n point, as determined under the sentencing guidelines before\n application of subsection (b) of §4A1.3 (Departures Based on\n Inadequacy of Criminal History Category);\n\n (2) the defendant did not use violence or credible threats of\n violence or possess a firearm or other dangerous weapon (or\n induce another participant to do so) in connection with the\n offense;\n\n (3) the offense did not result in death or serious bodily injury to\n any person;\n\n (4) the defendant was not an organizer, leader, manager, or\n supervisor of others in the offense, as determined under the\n sentencing guidelines and was not engaged in a continuing\n criminal enterprise, as defined in 21 U.S.C. § 848; and\n\n (5) not later than the time of the sentencing hearing, the\n\n\n 39\n\f defendant has truthfully provided to the Government all\n information and evidence the defendant has concerning the\n offense or offenses that were part of the same course of conduct\n or of a common scheme or plan, but the fact that the defendant\n has no relevant or useful other information to provide or that the\n Government is already aware of the information shall not\n preclude a determination by the court that the defendant has\n complied with this requirement.\n\n§ 5C1.2(a)(1)–(5) (emphases added). 9 The defendant bears the burden of\n\nsatisfying all five criteria by a preponderance of the evidence. United States v.\n\nVerners, 103 F.3d 108, 110 (10th Cir. 1996). If the defendant satisfies all five\n\ncriteria, the sentencing “court shall impose a sentence without regard to a\n\nstatutory minimum.” Zavalza-Rodriguez, 379 F.3d at 1185.\n\n b\n\n Here, only the second criterion—whether Mr. Hargrove “possess[ed] a\n\nfirearm . . . in connection with the offense”—is at issue because the government\n\nhas conceded that Mr. Hargrove otherwise qualifies for the safety valve. We note\n\nthree principles informing what it means to possess a firearm “in connection with\n\nthe offense,” before summarizing one case particularly important to our analysis.\n\n i\n\n First, we have held that a firearm is possessed “in connection with the\n\noffense” if the firearm facilitates or, as relevant here, has the “potential to\n\nfacilitate” the offense. United States v. Hallum, 103 F.3d 87, 89 (10th Cir. 1996),\n\n 9\n These five criteria replicate the relevant statute’s requirements. See\n18 U.S.C. § 3553(f)(1)–(5).\n\n 40\n\foverruled on other grounds by Pena-Sarabia, 297 F.3d at 989 & n.2 (overruling\n\nby an en banc footnote). Hallum’s “facilitate or potential to facilitate” concept\n\narose out of statutory and Guidelines provisions that are analogous to the firearms\n\ncomponent of the safety-valve provision. For example, we interpreted similar\n\nlanguage in the Guidelines enhancement for defendants who possess a firearm “in\n\nconnection with another felony offense” as applying when “the weapon facilitates\n\nor has the potential to facilitate . . . the offense.” United States v. Walters, 269\n\nF.3d 1207, 1219 (10th Cir. 2001) (quoting United States v. Gomez-Arrellano, 5\n\nF.3d 464, 466–67 (10th Cir. 1993)). 10\n\n In doing so, we relied on the Supreme Court’s interpretation of whether a\n\nfirearm was used “in relation to” an offense in Smith v. United States, 508 U.S.\n\n223, 238 (1993), partially abrogated on other grounds by Bailey v. United States,\n\n516 U.S. 137 (1995). See Gomez-Arrellano, 5 F.3d at 466–67. In Smith, the\n\nSupreme Court had interpreted the “in relation to” language as requiring that “the\n\ngun at least must ‘facilitat[e], or ha[ve] the potential of facilitating,’ the drug\n\n\n\n 10\n Walters and Gomez-Arrellano both addressed previous iterations of\nU.S.S.G. § 2K2.1(b)(5). See U.S.S.G. § 2K2.1(b)(5) (1992) (“If the defendant\nused or possessed any firearm or ammunition in connection with another felony\noffense; or possessed or transferred any firearm or ammunition with knowledge,\nintent, or reason to believe that it would be used or possessed in connection with\nanother felony offense, increase by 4 levels. If the resulting offense level is less\nthan level 18, increase to level 18.”); U.S.S.G. § 2K2.1(b)(5) (1998) (same); see\nalso Walters, 269 F.3d at 1218; Gomez-Arrellano, 5 F.3d at 466. The Guidelines\napplicable at the time of the offense contained similar language. U.S.S.G. §\n2K2.1(b)(6)(B) (2016).\n\n 41\n\ftrafficking offense.” 508 U.S. at 238 (quoting United States v. Stewart, 779 F.2d\n\n538, 539 (9th Cir. 1985) (Kennedy, J.), overruled in part on other grounds, as\n\nrecognized in Muscarello v. United States, 524 U.S. 125, 137 (1998)). 11 Thus, in\n\nlight of the foregoing, we should consider Mr. Hargrove’s possession of the\n\nfirearms to have been “in connection with the offense” only if the firearms\n\nfacilitated or had the potential to facilitate the offense.\n\n Second, we have focused on “the defendant’s own conduct” in evaluating\n\nhis eligibility for safety-valve relief. Zavalza-Rodriguez, 379 F.3d at 1186.\n\nThus, for example, we have ruled that proof of “a joint criminal actor’s\n\nreasonably foreseeable possession of a firearm” is not “sufficient to foreclose” a\n\ndefendant from receiving safety-valve relief. Pena-Sarabia, 297 F.3d at 988–89\n\n& n.2 (overruling Hallum “to the extent it is inconsistent with th[is] rule” of law).\n\nThis focus on a defendant’s own conduct is fully in accord with the Sentencing\n\nCommission’s commentary, which ordinarily controls our interpretation of the\n\nadvisory Guidelines. See United States v. Gieswein, 887 F.3d 1054, 1058 (10th\n\n\n\n 11\n Though the Hallum panel did not expressly mention the historical\norigins of the “potential to facilitate” linguistic formulation, other panels of this\ncourt, albeit in unpublished decisions, have recognized its historical roots. See\nUnited States v. Archuleta, 257 F. App’x 116, 123 (10th Cir. 2007) (unpublished)\n(connecting Hallum’s “potential to facilitate” language with Walters, 18 U.S.C. §\n924(c)(1), and U.S.S.G. § 2K2.1(b)(5)); see also United States v. Castaneda\nAscencio, 260 F. App’x 69, 71–72 (10th Cir. 2008) (unpublished) (quoting and\naffirming the district court’s statement that Gomez-Arrellano’s “analysis is\napplicable to the application of Sentencing Guideline Section 5C1.2,” before\nrelying on Hallum’s “potential to facilitate” language).\n\n 42\n\fCir.) (noting that the Guidelines “commentary from the Sentencing Commission is\n\n‘authoritative unless it violates the Constitution or a federal statute, or is\n\ninconsistent with, or a plainly erroneous reading of, that guideline’” (quoting\n\nStinson v. United States, 508 U.S. 36, 38 (1993))), cert. denied, 139 S. Ct. 279\n\n(2018); accord United States v. Lucero, 747 F.3d 1242, 1247 (10th Cir. 2014).\n\nAs relevant here, the Commission expressly “limit[ed] the accountability of the\n\ndefendant to his own conduct and conduct that he aided or abetted, counseled,\n\ncommanded, induced, procured, or willfully caused.” U.S.S.G. § 5C1.2 cmt. n.4\n\n(emphasis added).\n\n Third and relatedly, Zavalza-Rodriguez emphasized that “possession in\n\n§ 5C1.2(a)(2) is an active possession whereby there is a close connection linking\n\nthe individual defendant, the weapon and the offense.” 379 F.3d at 1187\n\n(emphasis added).\n\n ii\n\n Zavalza-Rodriguez offers helpful instruction regarding the contours of the\n\n“own conduct” and “active possession” principles described supra. Therefore, we\n\nturn to look at Zavalza-Rodriguez in more depth.\n\n Zavalza-Rodriguez discussed these two principles in explaining why the\n\nfirearms provision of the safety valve is materially distinct from a related firearms\n\nenhancement in § 2D1.1(b)(1). That Guideline provides for an offense-level\n\nenhancement for certain convicted drug traffickers “[i]f a dangerous weapon\n\n\n 43\n\f(including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). In\n\nZavalza-Rodriguez, police officers found the defendant in a home that contained\n\nnarcotics, material used to package narcotics, five firearms, and a large amount of\n\ncash. 379 F.3d at 1184. The officers found one of the firearms, a loaded\n\nsemiautomatic pistol, in the room where the defendant was staying. Id. The\n\nhome was owned by a third party who also was involved in selling narcotics, and\n\nthe defendant claimed that he had only spent one night in the home. Id.\n\n In his plea agreement, the defendant had stipulated to a sentencing\n\nenhancement pursuant to § 2D1.1(b)(1), which applies when “a dangerous weapon\n\n(including a firearm) was possessed,” based on the presence of the pistol;\n\nhowever, the defendant separately argued that he was eligible for the safety valve\n\nbecause the gun was not possessed “in connection with” the offense within the\n\nmeaning of § 5C1.2. Id. In particular, while the defendant acknowledged that he\n\nhad constructively possessed the gun through his knowledge of the gun’s presence\n\nin the bedroom where he stayed, he denied ever actually possessing or even\n\ntouching the gun. Id. at 1184–85. The district court accepted this argument, and\n\nheld the defendant was eligible for the safety valve, because there was a lack of\n\nevidence connecting the defendant to the gun. Id. at 1184.\n\n We affirmed. To start, we “explain[ed] that while a § 2D1.1(b)(1) sentence\n\nenhancement applies to a defendant for a co-conspirator’s possessing a weapon, a\n\ndefendant is not precluded from receiving a safety valve reduction [in the context\n\n\n 44\n\fof such a conspiracy] based on the defendant’s individual conduct,” if that\n\nconduct does not run afoul of the firearms component of the safety-valve\n\nprovision. Id. at 1186 (emphasis added); see also id. (noting that, “[a]lthough\n\nconspiracy was not charged in the information, [the defendant’s] situation is\n\nclosely analogous to the facts of these cases”). This is because in evaluating the\n\nsafety-valve provision, unlike § 2D1.1(b)(1), we focus on the defendant’s “own\n\nconduct” and “recognize a distinction between constructive and actual\n\npossession.” Id. Thus, while a co-conspirator’s possession of a firearm might\n\nsatisfy § 2D1.1(b)(1), the Guidelines commentary to the safety-valve provision\n\nlimits a defendant’s accountability to his “own conduct.” U.S.S.G. § 5C1.2 cmt.\n\nn.4.\n\n As for “active possession” of a firearm—which, as noted, entails a “close\n\nconnection linking the individual defendant, the weapon and the offense”—we\n\nreasoned that this requirement prevents mere constructive possession (without\n\nmore) from satisfying the safety-valve provision, though it might satisfy\n\n§ 2D1.1(b)(1). Zavalza-Rodriguez, 379 F.3d at 1186–87. 12 However, we\n\nspecifically distinguished situations involving mere constructive possession, as in\n\nZavalza-Rodriguez, from those where a defendant acknowledged actual\n\n 12\n See also United States v. Gutierrez-Casillas, 140 F. App’x 26, 28\n(10th Cir. 2005) (unpublished) (“We concluded [in Zavalza-Rodriguez] that\n§ 2D1.1(b)(1) merely requires ‘constructive possession,’ based on proximity of\nthe gun, whereas § 5C1.2 requires ‘actual possession,’ which is characterized by a\ncloser degree of connection.” (quoting Zavalza-Rodriguez, 379 F.3d at 1186–88)).\n\n 45\n\fpossession of a firearm. Id. at 1186 n.2. Taking note of our prior precedent,\n\nespecially Hallum, we acknowledged that, when a defendant “did not argue that\n\nthe gun was not actually his nor that it was merely constructively possessed,” “a\n\ngun’s proximity and potential to be used in connection with the offense” may well\n\nbe sufficient to bar safety-valve relief. Id. (citing Hallum, 103 F.3d at 89). 13\n\n 13\n We made this acknowledgment in the course of harmonizing the\nprinciples announced in Zavalza-Rodriguez with our prior precedent, most notably\nin Hallum, where we held that “a firearm’s proximity and potential to facilitate\nthe offense is enough to prevent application of [U.S.S.G.] § 5C1.2(2),” 103 F.3d\nat 89. See Zavalza-Rodriguez, 379 F.3d at 1186 n.2. Because “[i]n cases of\nconflicting circuit precedent our court ‘follow[s] earlier, settled precedent over a\nsubsequent deviation therefrom,’” United States v. Sabillon-Umana, 772 F.3d\n1328, 1334 n.1 (10th Cir. 2014) (quoting Haynes v. Williams, 88 F.3d 898, 900\nn.4 (10th Cir. 1996)), it was incumbent upon the Zavalza-Rodriguez panel to\nexplain why the dimensions of the safety-valve provision that it outlined were\ncongruent with our earlier decision in Hallum. In other words, we recognized that\nHallum was the law of this circuit. And, rather than purporting to overrule any\nportion of it, as we did in Pena-Sarabia, 297 F.3d at 989 & n.2, the\nZavalza-Rodriguez panel endeavored—as principles of stare decisis dictated—to\nharmonize its articulation of the safety-valve’s dimensions with Hallum’s holding\nthat a firearm’s proximity and potential to facilitate the offense may be\ndeterminative. Given that this harmonization endeavor was a necessary step in\nestablishing the legitimacy and integrity of Zavalza-Rodriguez’s holding, we are\nentirely unpersuaded by Mr. Hargrove’s assertion that Zavalza-Rodriguez’s\ndiscussion of Hallum amounted to no more than non-binding dicta. See Aplt.’s\nOpening Br. at 15 n.5 (contending that in Zavalza-Rodriguez “the Court did not\nneed to consider—and did not consider—whether its opinion had an impact on\nHallum, and its discussion of Hallum is nothing more than dicta”). Compare\nMichael Abramowicz & Maxwell Stearns, Defining Dicta, 57 S TAN . L. R EV . 953,\n953 (2005) (“A holding consists of those propositions along the chosen decisional\npath or paths of reasoning that are actually decided, are based upon the facts of\nthe case, and lead to the judgment. A proposition in a case that is not holding is\ndicta.” (emphasis added)), with Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1184\n(10th Cir. 1995) (“Dicta are ‘statements and comments in an opinion concerning\nsome rule of law or legal proposition not necessarily involved nor essential to\n (continued...)\n\n 46\n\f In other words, in the parlance of Zavalza-Rodriguez, in those\n\ncircumstances a court may find that a defendant “actively possessed” the firearm.\n\n379 F.3d at 1188. This makes sense. Where a defendant’s actual possession is\n\nundisputed, the sentencing court may find—by focusing on the defendant’s own\n\nconduct—the close connection that active possession requires between the\n\ndefendant and the firearm. As Zavalza-Rodriguez suggests, in a scenario of\n\nconstructive possession, ordinarily more would be required to establish such a\n\nclose connection. Compare id. at 1186 (noting that “we focus on the defendant’s\n\nown conduct for purposes of evaluating eligibility for the safety valve, and that\n\nwe recognize a distinction between constructive and actual possession”), with\n\nAndrade-Vargas, 459 F. App’x at 764, 768 (declaring “mistaken” the notion that\n\nZavalza-Rodrigruez held that “one must have actual physical possession of the\n\nfirearm to make him ineligible for a safety valve reduction” and ruling in a\n\ncircumstance where the defendant argued that “no evidence showed anyone saw\n\nhim possessing a firearm” that constructive possession was sufficient to establish\n\nthe active possession that Zavalza-Rodriguez requires, where the defendant had\n\n“knowledge and control of the firearms found in the bedroom he rented and had\n\nexclusive control over”). And, once the close connection between the defendant\n\nand the firearm is established, proof that the firearm was in close proximity to the\n\n 13\n (...continued)\ndetermination of the case in hand.’” (emphasis added) (quoting Dicta, B LACK ’ S\nL AW D ICTIONARY (6th ed. 1990)).\n\n 47\n\foffense and had the potential to facilitate the offense would round out the features\n\nof Zavalza-Rodriguez’s “active possession” requirement by demonstrating the\n\nclose connection between the firearm and the offense. See United States v.\n\nPayton, 405 F.3d 1168, 1171 (10th Cir. 2005) (noting, where defendant actually\n\npossessed the firearms, that “[t]he mere propinquity of the weapons and drugs\n\nsuggests a connection between the two”).\n\n In sum, our cases teach that a firearm is used “in connection with an\n\noffense” when it facilitates or has the “potential to facilitate” that offense.\n\nHallum, 103 F.3d at 89. The focus of our inquiry is “the defendant’s own conduct\n\nfor purposes of evaluating eligibility for the safety valve.” Zavalza-Rodriguez,\n\n379 F.3d at 1186 (emphasis added). And the kind of firearms possession that bars\n\napplication of the safety valve is “active possession whereby there is a close\n\nconnection linking the individual defendant, the weapon and the offense.” Id. at\n\n1187. Lastly, in circumstances where the defendant’s own conduct evinces actual\n\npossession of the firearm, we have recognized that active possession may be\n\nshown by evidence of “[that] firearm’s proximity and potential to facilitate the\n\noffense.” Hallum, 103 F.3d at 89; see Zavalza-Rodriguez, 379 F.3d at 1186 n.2.\n\n 4\n\n As noted, Mr. Hargrove contends that the district court “erred by\n\nconsidering only Mr. Hargrove’s possession of the firearms and their and his\n\nproximity to the marijuana, without taking into consideration Mr. Hargrove’s own\n\n\n 48\n\fconduct—a consideration required by this Court’s authorities.” Aplt.’s Opening\n\nBr. at 7. However, under the legal principles discussed above, Mr. Hargrove’s\n\nargument cannot prevail.\n\n a\n\n In Zavalza-Rodriguez, we expressly acknowledged that when a defendant\n\nconcedes actual possession of a firearm (as opposed to mere constructive\n\npossession), the requirement of active possession—based on defendant’s own\n\nconduct—may be rounded out and completed by further evidence that the\n\npossessed firearm was in close proximity to the offense and had the potential to\n\nfacilitate it. See 379 F.3d at 1186 n.2. Accordingly, contrary to Mr. Hargrove’s\n\nassertion, on these facts—where Mr. Hargrove freely admitted that the firearms\n\nbelonged to him and indicated that he had brought them in the vehicle to the\n\nscene of his arrest—the district court’s express focus on the firearms’ proximity\n\nand potential to facilitate the offense did not reflect an analytical disregard of Mr.\n\nHargrove’s own conduct.\n\n Indeed, Mr. Hargrove’s admissions regarding possession of the firearms\n\nplaced his own conduct front and center, and they were the jumping-off point for\n\nthe court’s further inquiries into proximity and facilitation. In other words, by\n\nfocusing on Mr. Hargrove’s admissions regarding his own conduct, the court\n\ncould discern that Mr. Hargrove actually possessed the firearms at some point\n\nduring the trip—at least likely so at the trip’s beginning, when the firearms were\n\n\n 49\n\fplaced in the vehicle—and had the firearms in close proximity to him thereafter,\n\nincluding at the time of his arrest. These admissions were sufficient to establish\n\nthe close connection required for active possession between Mr. Hargrove and the\n\nfirearms. At that point, the court was left with the task of determining whether\n\nthe requisite close connection existed between the firearms and the offense, so as\n\nto establish active possession. As Zavalza-Rodriguez acknowledged, this close\n\nconnection—under circumstances such as these—could be established where the\n\nfirearm was in close proximity to and had the potential to facilitate the offense.\n\nSee 379 F.3d at 1186 n.2.\n\n And that was certainly true here. As noted, the district court specifically\n\nfound (1) that the firearms were located “in the cab of the pickup truck with\n\nDefendant and the marijuana,” and thus were in close proximity to the drug\n\ntrafficking, and (2) that the firearms—which were loaded—“had the potential” to\n\nfacilitate the drug trafficking, even if the firearms did not do so directly. R., Vol.\n\nI, at 24. There is ample evidence in the record to support these factual findings.\n\nAnd it is well established that firearms are “‘tools of the trade’—that is, means\n\nfor the distribution of illegal drugs.” United States v. Martinez, 938 F.2d 1078,\n\n1083 (10th Cir. 1991) (quoting United States v. Wiener, 534 F.2d 15, 18 (2d Cir.\n\n1976)); accord United States v. McGehee, 672 F.3d 860, 872 (10th Cir. 2012); see\n\nalso United States v. Burkley, 513 F.3d 1183, 1188 (10th Cir. 2008) (noting that\n\n“evidence of Defendant’s firearm possession would have been admissible to prove\n\n\n 50\n\fhis intent to distribute marijuana”). Firearms are used by drug traffickers (among\n\nother things) to protect themselves from other criminals and to safeguard their\n\nvaluable narcotics from theft. See, e.g., United States v. Lott, 310 F.3d 1231,\n\n1248 (10th Cir. 2002) (“We conclude that the placement of a loaded,\n\nsemi-automatic weapon on the driver’s seat of the car in which the\n\ninstrumentalities of methamphetamine manufacturing were also found is sufficient\n\nevidence from which a jury could conclude that the purpose of the gun was to\n\nprovide defense or deterrence in furtherance of attempting to manufacture\n\nmethamphetamine.”); see also United States v. King, 632 F.3d 646, 657 (10th Cir.\n\n2011) (“Because the loaded rifle in this case was located immediately adjacent to\n\nthe drugs, a reasonable jury could infer that it furthered [the defendant’s] drug\n\ntrade by protecting [the defendant] and his merchandise.”). Thus, Mr. Hargrove’s\n\nloaded guns certainly had the potential to fulfill this protective purpose and, as\n\nthe district court specifically ruled, they had the potential to facilitate the drug-\n\ntrafficking offense.\n\n To be sure, Mr. Hargrove has argued that his possession of the firearms was\n\nunrelated to the drug-trafficking activity. In this regard, before the district court,\n\nhe asserted “that he had no knowledge of the marijuana, he was in the area to fish,\n\nand he thought the bundles of marijuana were alfalfa.” R., Vol. I, at 22.\n\nHowever, the court effectively discounted these statements in determining that\n\n“[t]he presence of the firearms was not coincidental or entirely unrelated to the\n\n\n 51\n\fdrug transaction.” Id. at 24. 14 And nothing in this record gives us pause in\n\naccording this factual determination the customary measure of deference. See,\n\ne.g., Hooks, 551 F.3d at 1217.\n\n Mr. Hargrove repeatedly objects that the district court did not take into\n\naccount that there was “no evidence that Mr. Hargrove had ever been involved in\n\nany sort of drug distribution,” Aplt.’s Reply Br. at 14 n.4, and “did not find that\n\nMr. Hargrove actually used or attempted to use the firearms in any way,” Aplt.’s\n\nOpening Br. at 10. See Aplt.’s Opening Br. at 21 (noting that “Mr. Hargrove has\n\nno criminal history relating to the distribution of drugs or the use of firearms, let\n\nalone at the same time”); Aplt.’s Reply Br. at 17 (“There must be something more\n\nin the way of the defendant’s own conduct (such as evidence the defendant had\n\nbeen running a drug operation or evidence that the defendant planned to use the\n\nweapon against human beings) that establishes the weapons were connected to the\n\noffense.”). However, Mr. Hargrove cites no Tenth Circuit authority holding that a\n\ndefendant’s prior drug-trafficking activities or actual use of the firearm are\n\nnecessary to establish active possession—much less that such factors are\n\n 14\n Panels of this court have frequently declined to credit self-serving\nstatements about the purpose of a defendant’s firearm possession. See, e.g.,\nAndrade-Vargas, 459 F. App’x at 768 (“[I]t is evident that, in denying the\nreduction, the district court discredited Mr. Andrade-Vargas’s seemingly\nself-serving claims he did not own the handguns and that they were not in the\nroom for the purpose of facilitating his drug trafficking activities—both of which\nwere unsupported by any evidence.”); Gutierrez-Casillas, 140 F. App’x at 28\n(affirming district court’s decision to “discount[]” each defendant’s credibility\n“by self-interest” (quoting record)).\n\n 52\n\fdeterminative. 15 In particular, there is nothing in Zavalza-Rodriguez that supports\n\nsuch a proposition. In fact, we have binding Tenth Circuit authority to the\n\ncontrary—that is, where neither prior drug-trafficking activity nor actual use of\n\nthe firearm appeared to play any role in our denial of safety-valve relief. See\n\nHallum, 103 F.3d at 89.\n\n In sum, based on the foregoing, we reject Mr. Hargrove’s argument that the\n\ndistrict court failed to properly focus on his own conduct and, thus, did not\n\ncorrectly determine his eligibility for safety-valve relief. In our view, the district\n\ncourt’s ruling is sound and consistent with our caselaw.\n\n b\n\n A closer inspection of our precedential Hallum decision only serves to\n\nunderscore the correctness of our judgment. Indeed, even standing alone,\n\nHallum—which involved materially similar facts—would arguably be\n\ndeterminative. In Hallum, officers apprehended Mr. Hallum and two accomplices\n\nwho were carrying duffle bags full of marijuana from a marijuana patch to their\n\nvehicles, which were parked “200 to 300 yards” away from the patch. 103 F.3d at\n\n89. After searching the vehicles, the officers found a .22 caliber rifle, which Mr.\n\n\n\n 15\n Mr. Hargrove relatedly asserts that “the precedential authority\nrequires some affirmative action on the part of a defendant to establish that a\nweapon was possessed ‘in connection with the offense.’” Aplt.’s Reply Br. at 11\n(emphasis added). But Mr. Hargrove cites no precedential authority to support\nthis assertion, merely directing us to the plain text of § 5C1.2(a)(2), which is\nunavailing.\n\n 53\n\fHallum later conceded was his. Mr. Hallum testified that he brought the rifle “to\n\nshoot snakes, and that while he could have used it to protect against another\n\nperson he did not have that intention and ‘would have not wanted to.’” Id.\n\n(quoting record). “The district court rejected the essence of Hallum’s testimony,\n\ndeclaring that if defendants were afraid of and protecting against snakes they\n\nwould not have left the rifle in the vehicle some 200 yards from the marijuana\n\npatch.” Id. The district court further found that “the weapon was close to the\n\nmarijuana cultivation activity, and accessible.” Id. (quoting record).\n\n We affirmed the district court’s denial of Mr. Hallum’s safety-valve\n\nrequest. We deemed it significant that Mr. Hallum admitted that he had the gun\n\n“for protection.” Id. (quoting record). “This plus the district court’s other\n\nfindings . . . establish[ed] proximity of the firearm to the offense.” Id. And, on\n\nthese facts, we held that “a firearm’s proximity and potential to facilitate the\n\noffense is enough to prevent application of [U.S.S.G.] § 5C1.2(2).” Id. Notably,\n\nviewed through the prism crafted by our subsequent decision in Zavalza-\n\nRodriguez, all of the elements of the requisite active possession were present in\n\nHallum: Mr. Hallum conceded his actual possession of the firearm, establishing a\n\nclose connection between him and the weapon, and the proximity of the firearm to\n\nthe marijuana and the evident drug-trafficking activity of Mr. Hallum established\n\nthe close connection between the weapon and the offense. See Zavalza-\n\nRodriguez, 379 F.3d at 1187. And Mr. Hallum acknowledged that the weapon\n\n\n 54\n\fcould have been used as protection against other human beings, meaning that it\n\nhad the potential to facilitate his drug trafficking. Thus, the district court’s denial\n\nof safety-valve relief should come as no surprise.\n\n Nor should a similar outcome surprise us here. Indeed, Hallum virtually\n\ncommands it. 16 We begin with proximity. The officers apprehended Mr.\n\nHargrove in a rural area with almost 300 pounds of marijuana in his pickup truck.\n\n“A [loaded] semi-automatic pistol . . . was on the dashboard and a loaded rifle\n\nwas behind the seat.” R., Vol. I, at 21. The district court specifically noted that\n\n“[t]he firearms were located in the cab of the pickup truck with Defendant and the\n\nmarijuana.” Id. at 24. The firearms here were thus even closer to Mr. Hargrove\n\nand the illegal narcotics than the firearm in Hallum was to Mr. Hallum.\n\n\n\n 16\n As we previously mentioned, Hallum was overruled in part by an en\nbanc footnote in Pena-Sarabia, 297 F.3d at 989 & n.2. In the overruled portion\nof Hallum, we erroneously applied the principle that “participants in joint\ncriminal enterprises can be accountable for the foreseeable acts of others that\nfurther the joint activity,” in concluding that Mr. Hallum’s co-conspirators, like\nMr. Hallum, did not qualify for safety-valve relief simply because they “knew of\nthe presence of the weapon Hallum brought to the marijuana patch; [and] that it\nmight further their joint activity was reasonably foreseeable.” Hallum, 103 F.3d\nat 90. But, importantly, the court’s holding and analysis with respect to Mr.\nHallum, which we explicate in text here, has maintained its vitality. See also\nAndrade-Vargas, 459 F. App’x at 767 (noting that “we have continued to rely on\nour holding in Hallum that a firearm’s proximity and potential to facilitate the\noffense may be sufficient to prevent application of the safety valve provision”);\nUnited States v. Montgomery, 387 F. App’x 884, 888 (10th Cir. 2010)\n(unpublished) (relying on Hallum); United States v. McClure, 358 F. App’x 5, 12\n(10th Cir. 2009) (unpublished) (same); United States v. Gonzalez-Ambriz, 353 F.\nApp’x 155, 157 (10th Cir. 2009) (unpublished) (same); Archuleta, 257 F. App’x\nat 123 (same).\n\n 55\n\f Further, like Mr. Hallum, Mr. Hargrove “voluntarily informed the agents of\n\nthe presence of the firearms when he was seized.” Id. at 21. Mr. Hargrove told\n\nthe agents that he had “two weapons inside the vehicle,” the rifle and the pistol.\n\nId., Vol. III, at 263. In post-arrest statements, Mr. Hargrove “admitted the loaded\n\nrifle and pistol found in his truck belonged to him.” Id., Vol. II, ¶ 8, at 5. 17 And,\n\nas in Hallum, these admissions supported a finding that Mr. Hargrove actually\n\npossessed the firearms at some point during the trip and had them in close\n\nproximity to him.\n\n Finally, as in Hallum, Mr. Hargrove also ostensibly had the guns for\n\nprotection against snakes but the district court effectively discredited that\n\nexculpatory explanation in denying him safety-valve relief. Mr. Hargrove asserts,\n\nhowever, that Hallum is not “directly analogous” to this case because, even\n\nthough Mr. Hallum testified regarding having the firearm for protection against\n\nsnakes, the Hallum panel elided the snake explanation and determined that he\n\n“had his gun ‘for protection’ in general, which necessarily implies that it could be\n\nfor ‘protection’ from anything, including human beings.” Aplt.’s Reply Br. at 12.\n\nThe situation here, as Mr. Hargrove reasons, is different; specifically, the\n\n\n\n 17\n Indeed, in his opening statement, Mr. Hargrove’s counsel told the\njury that Mr. Hargrove and Ms. Richter “have a lot of things in their truck,”\nincluding “a .25 caliber tiny little pistol” and the rifle that Mr. Hargrove “drives\naround with.” R., Vol. III, at 204. And, during a bench conference with the\njudge, Mr. Hargrove’s counsel plainly admitted that Mr. Hargrove “claimed\nownership of the gun. . . . [H]e claimed ownership about it.” Id. at 278.\n\n 56\n\fevidence indicated that he had the firearms only as protection against snakes.\n\n This line of argument is strained and unpersuasive. It is not remarkable\n\nthat the Hallum panel spoke generally of Mr. Hallum having the firearms “for\n\nprotection,” without any reference to the snakes justification, because the panel\n\nhad credited the district court’s finding that Mr. Hallum’s snake story was\n\nincredible. 103 F.3d at 89 (noting the district court’s statement that “if\n\ndefendants were afraid of and protecting against snakes they would not have left\n\nthe rifle in the vehicle some 200 yards from the marijuana patch”). As such, Mr.\n\nHargrove actually is on precisely the same footing as Mr. Hallum because the\n\ndistrict court here also effectively found incredible Mr. Hargrove’s exculpatory\n\nstatements about having the guns for protection against snakes, noting specifically\n\nthat “[t]he presence of firearms was not coincidental or entirely unrelated to the\n\ndrug transaction.” R., Vol. I, at 24. By merely reiterating statements “not found\n\nto be credible” by the district court, Mr. Hargrove is effectively asking “us for a\n\nde novo determination of credibility. [However, that] is not our role.” Payton,\n\n405 F.3d at 1171; see Galvon-Manzo, 642 F.3d at 1270–71; Hooks, 551 F.3d at\n\n1217.\n\n In sum, Hallum cogently underscores the correctness of our decision to\n\nuphold the district court’s denial of safety-valve relief to Mr. Hargrove. Indeed,\n\ngiven the similarity of Hallum’s facts to the instant case, it is arguably\n\ndeterminative.\n\n\n 57\n\f ***\n\n In sum, we conclude that the district court did not err in determining that\n\nMr. Hargrove did not establish a basis for safety-valve relief under U.S.S.G.\n\n§ 5C1.2.\n\n III\n\n Based on the foregoing, we AFFIRM the district court’s judgment\n\nregarding Mr. Hargrove’s conviction and sentence.\n\n\n\n\n 58\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. John Wayne HARGROVE, Defendant - Appellant.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-01-02\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n Tenth Circuit\\n\\n January 2, 2019\\n PUBLISH\\n Elisabeth A. Shumaker\\n UNITED STATES COURT OF APPEALS Clerk of Court\\n\\n TENTH CIRCUIT\\n\\n\\n\\n UNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n v. No. 17-2102\\n JOHN WAYNE HARGROVE,\\n\\n Defendant - Appellant.\\n\\n\\n\\n Appeal from the United States District Court\\n for the District of New Mexico\\n (D.C. No. 2:16-CR-02705-RB-2)\\n\\n\\n\\nRyan A. Ray, Norman Wohlgemuth Chandler Jeter Barnett & Ray, Tulsa,\\nOklahoma, for Defendant-Appellant.\\n\\n\\nDustin C. Segovia, Assistant United States Attorney (John D. Tierney, Acting\\nUnited States Attorney, with him on brief), Office of the United States Attorney\\nfor the District of New Mexico, Las Cruces, New Mexico, for Plaintiff-Appellee.\\n\\n\\n\\n\\nBefore TYMKOVICH, Chief Judge, BALDOCK, and HOLMES, Circuit Judges.\\n\\n\\n\\nHOLMES, Circuit Judge.\\n\\f United States Border Patrol agents found Defendant-Appellant John Wayne\\n\\nHargrove, his girlfriend Janelle Richter, and Edgar Silvas-Hinojos in the desert\\n\\nnear the border between Arizona and New Mexico. They were all in Mr.\\n\\nHargrove’s truck, along with nearly 300 pounds of marijuana and two firearms.\\n\\nMr. Hargrove was subsequently charged with two offenses: (1) conspiracy to\\n\\ndistribute more than 100 kilograms of marijuana in violation of 21 U.S.C. § 846;\\n\\nand (2) possession with the intent to distribute 100 kilograms or more of a\\n\\nmixture and substance containing a detectable amount of marijuana, and aiding\\n\\nand abetting said possession, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and\\n\\n18 U.S.C. § 2. After a two-day jury trial, Mr. Hargrove was found guilty and\\n\\nsentenced to sixty months’ imprisonment.\\n\\n Mr. Hargrove now raises two challenges on appeal. First, with regard to\\n\\nhis trial, Mr. Hargrove asserts that the district court erred in failing to grant him a\\n\\nmistrial after the prosecutor elicited testimony that the district court had\\n\\npreviously barred. Second, Mr. Hargrove contends that the district court erred in\\n\\nfailing to grant him safety-valve relief under § 5C1.2 of the United States\\n\\nSentencing Guidelines (“Guidelines” or “U.S.S.G.”). Because we hold that the\\n\\ndistrict court did not err with respect to either ruling, we affirm.\\n\\n\\n\\n\\n 2\\n\\f I\\n\\n A\\n\\n One night in February 2016, a Border Patrol agent detected seven\\n\\nbackpackers in the desert near Rodeo, New Mexico. 1 This rural area is known for\\n\\nnarcotics trafficking. After that agent observed the backpackers, he alerted other\\n\\nBorder Patrol agents, who moved in to apprehend the backpackers. The agents\\n\\nobserved the seven backpackers enter an area containing ranching equipment. Six\\n\\nof the seven backpackers then left this area without their backpacks. The agents\\n\\ndetained these six backpackers. The backpackers were dressed in camouflage\\n\\nclothing and wearing carpeted booties on their feet, which are typically worn to\\n\\nmask footprints. They admitted they had entered the country illegally.\\n\\n The dispatched agents then began looking for the missing (i.e., seventh)\\n\\nbackpacker and the discharged backpacks. The agents discovered a truck that\\n\\nappeared to be occupied by two individuals who were “trying to conceal\\n\\nthemselves or pretend[ing] to be sleeping in the truck, kind of slouching low in\\n\\ntheir chairs.” R., Vol. III, at 46 (Trial Tr., dated Oct. 17–18, 2016). As they\\n\\napproached, the agents could detect the smell of marijuana emanating from the\\n\\ntruck. An agent tapped on the truck’s window and asked the occupant on the\\n\\n\\n\\n 1\\n In the narcotics-trafficking context, a “backpacker” is a person who\\nsmuggles marijuana across the United States-Mexico border. See R., Vol. III, at\\n36–37 (Trial Tr., dated Oct. 17–18, 2016).\\n\\n 3\\n\\fdriver’s side—a woman, later identified as Ms. Richter—to roll down the\\n\\nwindow. After she did so, Ms. Richter got out of the vehicle. Likewise, an agent\\n\\nalso asked the occupant of the front passenger’s side of the vehicle—a man, later\\n\\nidentified as Mr. Hargrove—to get out of the truck. Mr. Hargrove complied.\\n\\nThere was also a third person in the truck, in the back seat on the passenger’s\\n\\nside, who the agents had not originally seen. This man, later identified as Mr.\\n\\nSilvas-Hinojos, also exited the truck. The agents believed that Mr. Silvas-\\n\\nHinojos was the seventh backpacker.\\n\\n After the three occupants exited the truck, an agent noticed a bundle of\\n\\nmarijuana lying in the center of the truck’s back seat. Agents also found and\\n\\nseized more bundles of marijuana in the bed of the truck; these bundles were\\n\\npartially covered by a tarp. The government later learned (through the\\n\\ncooperation of Mr. Silvas-Hinojos) that Mr. Hargrove had received the bundles of\\n\\nmarijuana from the backpackers and strapped them down in the bed of his truck.\\n\\nIn total, the agents seized approximately 297 pounds of marijuana from the truck.\\n\\n When Mr. Hargrove exited the truck, an agent patted him down and found\\n\\ntwo knives on his person. After another agent noticed a rifle in the truck’s back\\n\\nseat, Mr. Hargrove told the agents that he had “two weapons inside the vehicle,”\\n\\nincluding the rifle. Id. at 263. The second firearm, a pistol, was found on the\\n\\ntruck’s dashboard inside a bag bearing an Oakland Raiders emblem. At the time\\n\\nof these events, Ms. Richter was wearing a jacket with an Oakland Raiders\\n\\n 4\\n\\femblem that matched the one on the bag containing the pistol. Mr. Hargrove, Ms.\\n\\nRichter, and all of the backpackers were arrested.\\n\\n After his arrest, Mr. Hargrove again “admitted the loaded rifle and pistol\\n\\nfound in his truck belonged to him.” Id., Vol. II, ¶ 8, at 5 (Presentence\\n\\nInvestigation Report (“PSR”), dated Jan. 26, 2017). The agents asked Mr.\\n\\nHargrove about the bundles of marijuana they had found in his truck, and he told\\n\\nthe agents that he believed the bundles were alfalfa, not marijuana, and that he\\n\\nwas simply in the area to go fishing.\\n\\n B\\n\\n Mr. Hargrove was charged with two counts: (1) conspiracy to distribute\\n\\nmore than 100 kilograms of marijuana in violation of 21 U.S.C. § 846; and (2)\\n\\npossession with the intent to distribute 100 kilograms or more of a mixture and\\n\\nsubstance containing a detectable amount of marijuana, and aiding and abetting\\n\\nsaid possession, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C.\\n\\n§ 2. Ms. Richter and two of the backpackers were charged with similar crimes,\\n\\nbut these three pleaded guilty pursuant to plea agreements. Mr. Hargrove\\n\\nproceeded to trial.\\n\\n 1\\n\\n Prior to trial, Mr. Hargrove filed a motion in limine requesting that the\\n\\ndistrict court exclude all evidence regarding firearms or knives, including “all\\n\\npurported testimony [that] one of the firearms [was] stolen.” Suppl. R. at 12–14\\n\\n 5\\n\\f(Mr. Hargrove’s Mot. in Lim., dated Oct. 10, 2016). This motion contended that\\n\\n“the possession of the firearms was simply part of his property” and that Mr.\\n\\n“Hargrove made no attempt to hide or distance himself from the firearms,” and it\\n\\nargued, among other things, that admitting evidence that one of the firearms was\\n\\nstolen would be unduly prejudicial. Id. at 13–14.\\n\\n The district court resolved this motion in a written order. It reasoned that\\n\\n“[t]he presence of loaded firearms that Defendant admitted belong to him, and\\n\\ntheir location in the cab of the truck[,] is probative of Defendant’s knowledge and\\n\\nof his agreement to participate in a drug trafficking scheme.” Id. at 18 (Mem. Op.\\n\\nand Order, dated Oct. 14, 2016). The court further ruled that the probative value\\n\\nof this evidence was not substantially outweighed by potential prejudice; thus, the\\n\\nevidence was admissible. But the court adopted a contrary stance regarding the\\n\\nstolen nature of one of the firearms, concluding that “the fact that one of the\\n\\nfirearms was stolen is not particularly probative of any fact at issue.” Id.\\n\\nConsequently, the court found this evidence to be inadmissible, as the risk of\\n\\nprejudice substantially outweighed any conceivable relevance. Thus, the court\\n\\ngranted the motion in part, excluding any testimony concerning the stolen nature\\n\\nof one of the firearms but allowing testimony about the presence of loaded\\n\\nfirearms in the truck.\\n\\n At trial, Mr. Hargrove’s strategy was to raise doubt regarding whether he\\n\\nknew of the drug-trafficking activity and knowingly agreed to participate in it.\\n\\n 6\\n\\fSpecifically, during opening statements, Mr. Hargrove’s counsel told the jury that\\n\\nMs. Richter “arranged this marijuana deal,” R., Vol. III, at 202, that she had\\n\\nasked to borrow Mr. Hargrove’s vehicle, id., that she told Mr. Hargrove that they\\n\\nwere going to “camp out” at a fishing hole and “hang out for a few days,” id. at\\n\\n202–03, and that Mr. Hargrove—without any knowledge of the planned drug-\\n\\ntrafficking activity—agreed to do that, id. at 203.\\n\\n However, in eliciting testimony concerning the presence of loaded firearms\\n\\nin order to undermine this defense, as authorized by the district court, the\\n\\nprosecution strayed into forbidden territory. In response to the prosecutor’s\\n\\nquestions, a Border Patrol agent testified that one of the firearms had been stolen:\\n\\n Q. Agent [], is this -- are these the two individuals that you\\n arrested that night?\\n A. Yes sir.\\n Q. And you notice [Ms. Richter] has also an Oakland Raiders\\n decal on her jacket?\\n A. Yes, yes, sir.\\n Q. Is that basically what the bag was like also with where the\\n gun was?\\n A. Yeah, it was a black bag with an Oakland Raiders emblem\\n on it.\\n Q. And the defendant, though, was the one that told you\\n where the gun was?\\n A. Yes, sir.\\n Q. Did you ever ascertain ownership of that gun?\\n A. No, sir.\\n ....\\n Q. Did you eventually ascertain ownership of the gun?\\n A. I ran records checks on both weapons and the truck, yes,\\n sir.\\n Q. And to whom did it come back to?\\n A. The truck came back to the defendant. The rifle came\\n\\n 7\\n\\f back as a clear weapon and the pistol came back as stolen.\\n\\nId. at 264–65 (emphasis added).\\n\\n Mr. Hargrove’s counsel objected and immediately moved for a mistrial,\\n\\narguing that the testimony about the stolen gun could not be “cure[d] with an\\n\\ninstruction.” Id. at 265. The district court held a hearing on the issue outside of\\n\\nthe jury’s presence. The court first asked the agent if he had been instructed not\\n\\nto testify about the stolen nature of the gun. The agent answered that he had been\\n\\ninformed to disregard the fact that the gun was stolen, but “misunderstood the\\n\\nquestion” and stated that he did not “know how to answer [the question] without\\n\\n. . . not telling the truth.” Id. at 268. The prosecutor admitted “it’s my fault,”\\n\\nconceding that he did not “frame the question correctly.” Id. Accordingly, the\\n\\ncourt concluded that the error lay with the prosecutor and that the agent was not\\n\\nto blame for the utterance. The court subsequently took the motion for a mistrial\\n\\nunder advisement. See id. at 269 (“[T]his is how I’m going to play it: I am going\\n\\nto take under advisement the motion to mistrial. I’m going to instruct the jury\\n\\nwhen they get back that they are to completely disregard the answer. And then\\n\\nI’m going to see how the testimony proceeds and -- well, we’ll see where it\\n\\ngoes.”).\\n\\n The court called the jury back into the courtroom and gave the following\\n\\ninstruction:\\n\\n Ladies and gentlemen, in the preliminary instruction this\\n\\n 8\\n\\f morning, I told you that if, at some point in the trial, I told you\\n to disregard something that you heard, then you couldn’t consider\\n that matter in your deliberations later in the trial. Well, that’s\\n happened. So right before you left for your break, there was a\\n statement made by the agent that one of the firearms may have\\n been stolen. The stolen nature of those firearms is not at issue in\\n this case. That is not something that you need to consider. In\\n fact, I’m going to ask you and expect you to disregard anything\\n regarding that firearm or its ownership. That’s not something\\n you need to concern yourself with in this trial.\\n\\n And as we talked this morning, what’s before you are the two\\n charges, conspiracy and possession with intent on the marijuana.\\n There isn’t any charge related to firearms, their ownership, and\\n it would be inappropriate for you to consider those facts in\\n addressing the facts that are actually in front of you and the\\n elements of the charges that are actually in front of you. So\\n please disregard any thought or connection relating to the\\n ownership of that firearm.\\n\\nId. at 284–85 (emphases added). Following that instruction, the trial resumed and\\n\\nthe prosecutor quickly finished his cross-examination of the agent.\\n\\n Moreover, the prosecutor took remedial measures during the remainder of\\n\\nthe trial: specifically, the prosecutor (1) withdrew an exhibit displaying all\\n\\nweapons retrieved from the truck, see id. at 25 (“[T]he government would not\\n\\noppose removing [Government’s Exhibit Number 15, i.e., a photo of the guns and\\n\\nknives] if it will help alleviate some of the damage that was done. So since the\\n\\njury hasn’t seen it, the government, without objection from defense, will\\n\\nwithdraw that exhibit.”); (2) did not seek testimony from its expert witness\\n\\nregarding the use of firearms in the narcotics trade, even though it had filed a\\n\\nnotice with the court regarding expert testimony in this area; and (3) did not\\n\\n 9\\n\\fdiscuss either of the guns during its closing argument.\\n\\n After the close of all of the evidence but prior to closing arguments, the\\n\\ndistrict court denied the motion for mistrial, concluding that the prosecutor’s\\n\\nviolation of the court’s ruling was not “intentional” but rather “was a mistake . . .\\n\\ncaused by an inartfully asked question.” Id. at 138. The court further concluded\\n\\nthat, in light of all of the evidence, the improper testimony was not\\n\\n“consequential.” Id. The defense renewed its objection after the court’s ruling\\n\\nbut seemed to agree that the prosecutor had not acted in bad faith in eliciting the\\n\\ntestimony. Id. at 139 (“Obviously, I don’t think the issue of whether it was in bad\\n\\nfaith or not is really at issue here. What’s at issue is the prejudice of the exact\\n\\nnature of the testimony that was specifically excluded that came in. And it is of\\n\\nsuch nature that the only fair remedy to this proceeding would be to declare a\\n\\nmistrial.”).\\n\\n Then, after the closing arguments, the court again instructed the jury:\\n\\n During the trial, I didn’t let you hear answers to some of the\\n questions that the lawyers asked and sometimes I ordered you to\\n disregard things you saw or heard or I struck things from the\\n record. You must completely ignore all of those things. Don’t\\n even think about them. Don’t speculate about what a witness\\n might have said. These things are not evidence and you’re bound\\n by your oath not to let them influence your decision in any way.\\n\\nId. at 144. After approximately one hour of deliberation, the jury found Mr.\\n\\nHargrove guilty on both counts.\\n\\n 2\\n\\n 10\\n\\f Following Mr. Hargrove’s conviction, the U.S. Probation Office prepared a\\n\\nPSR noting that the mandatory-minimum sentence was sixty months’\\n\\nimprisonment and computing an advisory Guidelines sentencing range of sixty to\\n\\nsixty-three months’ imprisonment. Id., Vol. II, at 1–15 (PSR, dated Jan. 26,\\n\\n2017). 2\\n\\n In his Sentencing Memorandum and Objections to the PSR, Mr. Hargrove\\n\\nargued that he qualified for the safety valve under U.S.S.G. § 5C1.2 and,\\n\\ntherefore, his sentence should have been calculated without regard to the\\n\\notherwise-applicable mandatory minimum. 3 See id., Vol. I, at 40–42\\n\\n 2\\n The Probation Office used the 2016 edition of the Guidelines in\\ncalculating Mr. Hargrove’s sentence. Neither party questions this choice on\\nappeal; therefore, we also rely on the 2016 edition, to the extent that it is relevant\\nto the resolution of the issues on appeal.\\n 3\\n The Guidelines safety-valve provision (i.e., § 5C1.2) traces back to a\\nstatutory safety-valve provision that Congress had enacted, 18 U.S.C. § 3553(f);\\nthis provision permits a district court to disregard the otherwise applicable\\nstatutory mandatory minimum and to sentence a defendant in accordance with the\\nadvisory Guidelines and the sentencing factors of 18 U.S.C. § 3553(a). See, e.g.,\\nUnited States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008) (“Section 3553(a)\\nmandates consideration of its enumerated factors . . . .”); United States v.\\nAltamirano-Quintero, 511 F.3d 1087, 1091 (10th Cir. 2007) (noting that the\\nstatutory safety-valve provision “permits the district court to disregard a statutory\\nmandatory minimum sentence and instead impose a sentence within the advisory\\nsentencing guidelines range”); United States v. Acosta-Olivas, 71 F.3d 375, 379\\n(10th Cir. 1995) (“In sum, § 3553(f), as repeated in guideline [U.S.S.G.] § 5C1.2,\\nwas clearly intended to permit courts to sentence relatively less culpable\\noffenders to sentences below an otherwise applicable mandatory statutory\\nminimum sentence.”). In U.S.S.G. § 5C1.2, not only has the Sentencing\\nCommission “set[] forth the relevant provisions” of § 3553(f), but it also “has\\npromulgated application notes to provide guidance in the application of the\\n (continued...)\\n\\n 11\\n\\f(Sentencing Mem. & Objs. to PSR, dated Apr. 24, 2017). In particular, Mr.\\n\\nHargrove disputed whether he had “possess[ed] a firearm or other dangerous\\n\\nweapon . . . in connection with the offense.” U.S.S.G. § 5C1.2(a)(2). Mr.\\n\\nHargrove asserted that there was no evidence that the firearms’ presence “had\\n\\nanything to do with the marijuana transaction”; consequently, Mr. Hargrove\\n\\nreasoned that he was eligible for safety-valve relief under § 5C1.2. R., Vol. I, at\\n\\n41. After making other arguments for the application of reductions and a\\n\\nvariance, Mr. Hargrove requested a sentence of eighteen months’ imprisonment.\\n\\n During the first of two sentencing hearings, Mr. Hargrove’s counsel argued\\n\\nthat the transaction resulting in his arrest was not a “typical drug situation” that\\n\\nwas “real dangerous” because money was not exchanged between the backpackers\\n\\nand the individual picking up the drugs. Id., Vol. III, at 7 (Sentencing Hr’g Tr.,\\n\\ndated May 4, 2017). He thus reasoned that Mr. Hargrove would not have needed\\n\\nto bring a firearm for protection. The district court rejected this argument, noting\\n\\n\\n 3\\n (...continued)\\nstatute.” U.S.S.G. § 5C1.2, cmt. background. Mr. Hargrove’s safety-valve\\nargument before the district court was consistently framed in terms of the\\nGuidelines provision, § 5C1.2. Though his opening brief is sprinkled with several\\ncitations to the statutory safety-valve provision, § 3553(f), Mr. Hargrove also\\nprimarily invokes the rubric of § 5C1.2 in stating his appellate challenge. Aplt.’s\\nOpening Br. at 1 (stating the issue for review as whether “Mr. Hargrove\\npossess[ed] a firearm in connection with the offenses of which he was convicted,\\nsuch that he was ineligible for the safety valve under [U.S.S.G.] § 5C1.2?”).\\nGiven that the Guidelines safety-valve provision restates verbatim the relevant\\ntext of the statutory safety-valve provision, Mr. Hargrove’s litigation decision on\\nthis point is of no moment in our analysis.\\n\\n 12\\n\\fthat “[i]f I’m going to my first big drug deal in Rodeo -- in a farm outside Rodeo,\\n\\nNew Mexico, in the dark of the night with a bunch of guys, backpackers, coming\\n\\nover the hill, I might think I needed to be protected.” Id. at 8. Mr. Hargrove’s\\n\\ncounsel also argued that the weapons were unrelated to the offense, as many\\n\\nindividuals in remote areas carry weapons because of “snakes,” “varmints,” and\\n\\n“things of that nature.” Id. at 9. The court, however, expressed skepticism,\\n\\nquestioning “[h]ow many of those [weapons used as protection against animals]\\n\\n[we]re stolen,” like one of Mr. Hargrove’s guns. Id. Because of the potential for\\n\\na “big swing” based on the application vel non of the safety valve, the court\\n\\nrecessed for further research on how to treat the firearms. Id. at 16.\\n\\n In a written order, the district court denied Mr. Hargrove safety-valve\\n\\nrelief. Specifically, the district court stated: “The only question at issue is\\n\\nwhether [Mr. Hargrove] possessed the firearms ‘in connection with the offense.’”\\n\\nId., Vol. I, at 23 (Mem. Op. and Order, dated May 25, 2017) (quoting 18 U.S.C.\\n\\n§ 3553(f)). The district court recited the relevant facts: Mr. Hargrove and both\\n\\nguns were found in the cab of the truck, and most of the marijuana was found\\n\\nclose by in the truck’s bed; both guns were loaded; and Mr. Hargrove evinced\\n\\nknowledge of the location of the guns by voluntarily telling the agents about\\n\\nthem. The district court concluded that “[b]oth [the] proximity and the potential\\n\\n[of the weapons] to facilitate the offense” established that the weapons were\\n\\npossessed “in connection with the offense.” Id. at 23–24. The court further\\n\\n\\n 13\\n\\freasoned that “[e]ven if the firearms did not directly facilitate the drug\\n\\ntransaction, they certainly had the potential to do so.” Id. at 24. The court\\n\\nconcluded: “Under these circumstances, Defendant has not met his burden by a\\n\\npreponderance of the evidence to demonstrate eligibility for the safety valve.\\n\\nThus, Defendant is subject to the statutory mandatory minimum sentence of 60\\n\\nmonths.” Id.\\n\\n The court then held a second sentencing hearing. During his allocution,\\n\\nMr. Hargrove stated: “I had my guns with me ‘cause I was going to work and I\\n\\nmight come across a rattlesnake.” Id., Vol. III, at 324 (Sentencing Hr’g Tr., dated\\n\\nJune 7, 2017). He further stated that at the time of his arrest he “was four and a\\n\\nhalf feet away from [his] weapon.” Id. at 327. The district court subsequently\\n\\nsentenced Mr. Hargrove to sixty months’ imprisonment, the applicable\\n\\nmandatory-minimum sentence. Mr. Hargrove now appeals.\\n\\n II\\n\\n We are presented with two issues in this appeal: (1) whether the district\\n\\ncourt erred in failing to grant Mr. Hargrove’s motion for a mistrial after the\\n\\nBorder Patrol agent testified about the stolen nature of Mr. Hargrove’s pistol, and\\n\\n(2) whether the district court erred in failing to grant Mr. Hargrove safety-valve\\n\\nrelief under U.S.S.G. § 5C1.2. Because we conclude that the district court did not\\n\\nerr with respect to either issue, we affirm the court’s judgment as to Mr.\\n\\nHargrove’s conviction and sentence.\\n\\n\\n 14\\n\\f A\\n\\n We first address Mr. Hargrove’s assertion that the district court erred by\\n\\ndenying his motion for a mistrial after the Border Patrol agent testified that the\\n\\npistol in Mr. Hargrove’s car was stolen, in direct contravention of the district\\n\\ncourt’s ruling in limine. As discussed below, we conclude that Mr. Hargrove’s\\n\\narguments in support of this assertion are unavailing.\\n\\n “We review a district court’s refusal to grant a mistrial for abuse of\\n\\ndiscretion. The district court has discretion to grant a mistrial only when a\\n\\ndefendant’s right to a fair and impartial trial has been impaired.” United States v.\\n\\nMeridyth, 364 F.3d 1181, 1183 (10th Cir. 2004) (citation omitted). “This calculus\\n\\ncalls for ‘an examination of the prejudicial impact of an error . . . viewed in the\\n\\ncontext of an entire case.’” United States v. Wells, 739 F.3d 511, 532 (10th Cir.\\n\\n2014) (quoting Meridyth, 364 F.3d at 1183). “While there are ‘cases where the\\n\\nprejudicial effect cannot be erased because the evidence is of such a nature that it\\n\\nnecessarily interferes with the jury’s impartial consideration of other evidence,’\\n\\n‘[t]he general rule is that the effect of improper evidence may be remedied by\\n\\nadmonishing the jury to disregard and by withdrawing the evidence.’” Id. at 533\\n\\n(alteration in original) (quoting United States v. Laymon, 621 F.2d 1051, 1053\\n\\n(10th Cir. 1980)).\\n\\n “Under the abuse of discretion standard, a trial court’s decision will not be\\n\\ndisturbed unless the appellate court has a definite and firm conviction that the\\n\\n\\n 15\\n\\flower court has made a clear error of judgment or exceeded the bounds of\\n\\npermissible choice in the circumstances.” United States v. Chanthadara, 230 F.3d\\n\\n1237, 1248 (10th Cir. 2000) (quoting United States v. Thompson, 908 F.2d 648,\\n\\n650 (10th Cir. 1990)). Or, put another way, “[w]e will not disturb a district\\n\\ncourt’s decision to deny a motion for a mistrial unless the decision ‘was based on\\n\\na clearly erroneous finding of fact or an erroneous conclusion of law or manifests\\n\\na clear error of judgment.’” United States v. Templeman, 481 F.3d 1263, 1265\\n\\n(10th Cir. 2007) (quoting United States v. Stiger, 413 F.3d 1185, 1194 (10th Cir.\\n\\n2005), abrogated in part on other grounds by Alleyne v. United States, 570 U.S.\\n\\n99, 108 (2013)).\\n\\n In determining whether a mistrial is necessary “where the prosecutor asked\\n\\na question her witness answered in a potentially improper way,” the\\n\\nnonexhaustive set of factors that we consider “include”: (1) whether the\\n\\nprosecutor acted in bad faith, (2) whether the district court limited the effect of\\n\\nthe improper statement through its instructions to the jury, and (3) whether the\\n\\nimproper remark was inconsequential in light of the other evidence of the\\n\\ndefendant’s guilt. Meridyth, 364 F.3d at 1183. Here, all three factors weigh in\\n\\nfavor of affirming the district court’s decision.\\n\\n 1\\n\\n The parties first dispute whether the prosecutor acted in bad faith in\\n\\neliciting the Border Patrol agent’s improper testimony about the stolen gun. The\\n\\n\\n 16\\n\\fdistrict court found no bad faith by the prosecutor, specifically ruling that the\\n\\nprosecutor did not act in an “intentional” manner in eliciting the improper\\n\\ntestimony but, rather, made “a mistake,” and that the testimony was “caused by an\\n\\ninartfully asked question.” R., Vol. III, at 138. We conclude that the district\\n\\ncourt’s assessment was firmly grounded in the record evidence and legally sound.\\n\\n We primarily rest our conclusion on two variables that our caselaw has\\n\\ndeemed to be significant in the bad-faith inquiry. 4 First, we have inquired\\n\\nwhether “the prosecutor . . . intentionally elicit[ed] the statement in question.”\\n\\nMeridyth, 364 F.3d at 1184; see United States v. Kamahele, 748 F.3d 984, 1017\\n\\n(10th Cir. 2014) (discerning no bad faith in part because “[t]he mistake\\n\\nappear[ed] to be innocent”). And, second, we have noted whether the prosecutor\\n\\nacknowledged the improper character of the testimony and took steps to mitigate\\n\\nits prejudicial effects. See Wells, 739 F.3d at 533 (affirming denial of a motion\\n\\n 4\\n During oral argument on the motion for mistrial before the district\\ncourt, Mr. Hargrove’s trial counsel seemed to concede that the prosecutor did not\\nact in bad faith. See R., Vol. III, at 139 (“Obviously, I don’t think the issue of\\nwhether it was in bad faith or not is really at issue here. What’s at issue is the\\nprejudice of the exact nature of the testimony that was specifically excluded that\\ncame in.”). The government acknowledges this apparent concession here but does\\nnot argue that it is dispositive. See Aplee.’s Resp. Br. at 24 (“Contrary to\\nHargrove’s assertion of bad faith on appeal, as Hargrove’s trial counsel\\nacknowledged and as the district court found, the government did not act in bad\\nfaith in asking the questions that it did.”). In light of the government’s approach,\\nwe are content to accord the apparent concession of Mr. Hargrove’s counsel on\\nthe bad-faith issue little weight in our analysis, though it is not irrelevant. It is\\nsimply noteworthy in passing that Mr. Hargrove’s trial counsel, who saw the\\nprosecutor’s questioning of the agent in real time—just as the trial judge did—did\\nnot at that time view the prosecution’s conduct as evidencing bad faith.\\n\\n 17\\n\\ffor mistrial in part because the “prosecutor attempted to change the subject\\n\\nimmediately after” the inappropriate testimony); cf. Meridyth, 364 F.3d at 1184\\n\\n(noting that the prosecutor’s failure to fully acknowledge the improper nature of\\n\\nthe testimony “somewhat belied” her “ostensibly innocent explanation” for\\n\\neliciting the testimony).\\n\\n Turning to the first variable, though it is undisputed that the prosecutor’s\\n\\nquestions elicited the improper, stolen-gun testimony, the district court did not\\n\\nclearly err in finding that the prosecutor did so inadvertently (i.e., by mistake),\\n\\nnot with bad intent. See Meridyth, 364 F.3d at 1184. The Border Patrol agent\\n\\nstated that the prosecutor told him not to testify about the stolen nature of the\\n\\ngun. See R., Vol. III, at 268. The fact that the prosecutor specifically instructed\\n\\nthe agent not to testify about the stolen nature of the gun significantly undermines\\n\\nany notion that the prosecutor’s intent was to put the improper testimony before\\n\\nthe jury. See Kamahele, 748 F.3d at 1017 (concluding that the prosecutor’s\\n\\n“mistake appear[ed] to be innocent [because] the prosecutor informed the district\\n\\ncourt that she had previously instructed the witness not to discuss” the improper\\n\\ntestimony).\\n\\n In response, Mr. Hargrove points to the fact—ostensibly suggestive of ill\\n\\nintent—that the prosecutor repeatedly inquired about the ownership of the gun\\n\\nbefore the agent uttered the improper testimony. But, at least under the\\n\\ncircumstances here, this tells us virtually nothing about whether the prosecutor\\n\\n\\n 18\\n\\facted with bad intent or was simply careless and persistently so.\\n\\n And, in this factual setting, we view the second variable—the prosecutor’s\\n\\nconduct in acknowledging the improper character of the testimony and taking\\n\\nsteps to mitigate its prejudicial effects—as strongly indicating that the prosecutor\\n\\ndid not act in bad faith. First, in the immediate aftermath of the improper\\n\\ntestimony, the prosecutor admitted that his questioning was unclear and that he\\n\\nwas at fault for causing the testimony to be uttered. See R., Vol. III, at 268 (“I\\n\\nthink it’s my fault because I didn’t ask [the pertinent questions] clear[ly] enough.\\n\\nBut I didn’t intend to violate the order. I just didn’t -- I didn’t frame the question\\n\\ncorrectly.”). This immediate acceptance of responsibility—while certainly not\\n\\ndispositive—provides some support for the conclusion that “the prosecutor did\\n\\nnot intentionally elicit the statement in question.” Meridyth, 364 F.3d at 1184.\\n\\nIndeed, the prosecutor’s conduct here contrasts markedly with the prosecutor’s\\n\\nconduct in Meridyth. There, instead of immediately accepting responsibility for\\n\\nadducing the improper testimony, the prosecutor spent much of her “response to\\n\\nthe motion for a mistrial” trying to convince the court that there actually was an\\n\\nevidentiary basis for the introduction of the testimony; the prosecutor could\\n\\nreasonably be understood from this line of argument as saying that, even if she did\\n\\nintend to adduce the testimony, her conduct would not have been improper. Id.\\n\\nWe concluded in Meridyth that the prosecutor’s approach “somewhat belied” her\\n\\n“ostensibly innocent explanation,” which was based on the view that she did not\\n\\n\\n 19\\n\\factually intend to adduce the testimony. Id. In short, the prosecutor’s immediate\\n\\nacceptance of responsibility here is significantly probative of the prosecutor’s\\n\\nlack of bad faith.\\n\\n We view in a similar light the prosecutor’s efforts to mitigate the\\n\\nprejudicial effects of the improper testimony throughout the remainder of the\\n\\ntrial. Once he resumed the examination of the agent (i.e., following the improper\\n\\nutterance), the prosecutor immediately veered his questioning away from the\\n\\nstolen gun and began inquiring about other issues; he thereafter quickly ended his\\n\\nexamination of the agent:\\n\\n Q. Agent [], did you find any binoculars in the vehicle?\\n A. There was a set of night-vision goggles inside the vehicle.\\n Q. Where in the vehicle were they?\\n A. I don’t recall. I did not locate them, myself.\\n [Prosecutor]: I’ll pass the witness, Your Honor.\\n\\nR., Vol. III, at 285. Such a dramatic shift supports the district court’s finding that\\n\\nthe prosecutor did not intend to put the improper testimony before the jury in the\\n\\nfirst place. See Wells, 739 F.3d at 533. Furthermore, moving past the immediate\\n\\naftermath of the improper testimony, the prosecution went to great lengths to limit\\n\\nany damage caused by the testimony by taking the following steps: (1)\\n\\nwithdrawing an exhibit that displayed all of the weapons retrieved from the truck;\\n\\n(2) forgoing testimony from its expert witness regarding the use of firearms by\\n\\ndrug traffickers to safeguard their narcotics loads, even though it had given notice\\n\\nof expert testimony to this effect; and (3) avoiding any discussion of the guns\\n\\n\\n 20\\n\\fduring its closing argument. In sum, the prosecutor’s actions—both immediately\\n\\nafter eliciting the improper testimony and throughout the remainder of the\\n\\ntrial—clearly evince a strong intent to mitigate any prejudicial effects of the\\n\\nimproper testimony, rather than an intent to highlight or cement such effects.\\n\\nSuch remedial efforts strongly suggest that the prosecution did not intend to elicit\\n\\nthe improper testimony to begin with.\\n\\n To be sure, we noted in Meridyth that one of the “helpful” inquiries\\n\\n“subsumed within the ‘bad faith’ factor” is whether the prosecutor’s “line of\\n\\nquestioning was reasonable.” 364 F.3d at 1183 n.3. Mr. Hargrove underscores\\n\\nthis point, arguing that “there was no reason for this [i.e., the prosecutor’s] line of\\n\\nquestioning” and that “the line of questioning was wholly unreasonable.” Aplt.’s\\n\\nOpening Br. at 27–28. In response, the government contends that the prosecutor’s\\n\\nquestioning was designed (albeit inartfully) to establish that Mr. Hargrove had\\n\\nclaimed ownership of the firearms, in order (1) to show that he was aware of the\\n\\ndrug transaction that was going on, and (2) to avoid the jury drawing an incorrect\\n\\ninference from the testimony that immediately preceded the ownership line of\\n\\nquestioning—that is, testimony about Ms. Richter wearing an Oakland Raiders\\n\\njacket with an emblem that matched the one on the Oakland Raiders bag\\n\\ncontaining the pistol. More specifically, the government contends that the\\n\\nprosecutor apparently reasoned that “the jury could have inferred [wrongly from\\n\\nthe fact that the bag displayed the same Oakland Raiders emblem as Ms. Richter’s\\n\\n\\n 21\\n\\fjacket] that it was Richter’s bag and Richter’s firearm, even though Hargrove was\\n\\naware of the location of the firearm.” Aplee.’s Resp. Br. at 20. Accordingly, the\\n\\ngovernment argues that the testimony was relevant to undermine Mr. Hargrove’s\\n\\ndefense theory that Ms. Richter planned the entire event and that he agreed to go\\n\\nalong on the trip with lawful purposes in mind, without knowledge of the drug-\\n\\ntrafficking activity.\\n\\n On this specific point, however, we are not persuaded by the government’s\\n\\nargument. Recall that, among other things, the prosecutor asked the agent with\\n\\nrespect to the pistol: “Did you ever ascertain ownership of that gun?” and “[T]o\\n\\nwhom did it come back to?” R., Vol. III, at 264–65. Under these circumstances,\\n\\nwe are hard-pressed to discern the relevancy of any testimony regarding the legal\\n\\nownership of the pistol. Indeed, if the prosecutor just wanted to establish for the\\n\\njury that it was Mr. Hargrove—not Ms. Richter—who possessed the pistol and\\n\\nbrought it to the drug transaction (with the attendant inference that Mr. Hargrove\\n\\nknew drug-trafficking activity was going on and needed the firearm to protect it),\\n\\nthe prosecutor could have simply asked the agent if he knew whether anyone laid\\n\\nclaim to the pistol during the arrests and investigation of the crime. And the\\n\\nagent almost certainly would have responded that Mr. Hargrove did so.\\n\\n Based on the foregoing, we therefore do not find the government’s\\n\\nargument regarding the reasonableness of its line of questioning persuasive.\\n\\nHowever, the prosecution can act unreasonably without acting in bad faith. Given\\n\\n\\n 22\\n\\fthe totality of the circumstances here, we reject Mr. Hargrove’s suggestion that\\n\\nthis one factor “weighs heavily in favor of a finding that the Government acted in\\n\\nbad faith.” Aplt.’s Opening Br. at 28. As noted, the district court’s finding that\\n\\nthe prosecutor elicited the improper testimony through inadvertence—rather than\\n\\nintentionally—is firmly supported by the record, and the prosecutor’s conduct in\\n\\npromptly acknowledging the improper character of the testimony and taking steps\\n\\nto mitigate its prejudicial effects strongly supports the conclusion that the\\n\\nprosecutor did not act at the outset in bad faith in eliciting the improper\\n\\ntestimony. In light of these circumstances, we feel confident in rejecting any\\n\\nsuggestion that the prosecutor’s questioning amounted to “a gratuitous attempt to\\n\\nimproperly influence the jury” through placing improper testimony before it about\\n\\nthe stolen nature of the pistol. Meridyth, 364 F.3d at 1184. More generally,\\n\\nconsidering all of the circumstances, we conclude that the prosecutor did not act\\n\\nin bad faith, and that this criterion weighs heavily in the government’s favor.\\n\\n 2\\n\\n We next consider whether the district court’s instructions following the\\n\\ntestimony about the stolen gun “limited the effect of the improper statement . . .\\n\\nto the jury.” Meridyth, 364 F.3d at 1183. We conclude that this factor also\\n\\nweighs heavily in the government’s favor.\\n\\n We presume that jurors “follow their instructions.” Id. at 1184; United\\n\\nStates v. Lamy, 521 F.3d 1257, 1266 (10th Cir. 2008) (“We presume that jurors\\n\\n\\n 23\\n\\fwill follow clear instructions to disregard evidence . . . .” (quoting United States\\n\\nv. Caballero, 277 F.3d 1235, 1243 (10th Cir. 2002))). However, this presumption\\n\\nmay be overcome: “[W]here the character of the testimony is such that it will\\n\\ncreate so strong an impression on the minds of the jurors that they will be unable\\n\\nto disregard it in their consideration of the case, although admonished to do so, a\\n\\nmistrial should be ordered.” Maestas v. United States, 341 F.2d 493, 496 (10th\\n\\nCir. 1965); see also Lamy, 521 F.3d at 1266 (noting that the presumption applies\\n\\n“unless there is an overwhelming probability that the jury will be unable to follow\\n\\nthe court’s instructions, and a strong likelihood that the effect of the evidence\\n\\nwould be devastating to the defendant” (quoting Caballero, 277 F.3d at 1243)).\\n\\n Mr. Hargrove contends that the agent’s improper testimony made the “sort\\n\\nof strong impression” described in Maestas, Aplt.’s Opening Br. at 31, but his\\n\\nassertions on this issue are entirely conclusory. He vaguely references his\\n\\nopening brief’s “discussion of the third factor” (i.e., of whether the agent’s\\n\\ntestimony was inconsequential), id., without ever mentioning what components of\\n\\nthis discussion are relevant under Maestas. Indeed, he never again mentions\\n\\nMaestas, nor does he discuss its facts or analyze what “character of . . .\\n\\ntestimony” is necessary to give rise to the kind of “strong impression” that a jury\\n\\nmight be unable to disregard. Maestas, 341 F.2d at 496. Therefore, we view Mr.\\n\\nHargrove’s contention as waived. See, e.g., United States v. Pursley, 577 F.3d\\n\\n1204, 1231 n.17 (10th Cir. 2009) (noting that a “skeletal reference does not\\n\\n\\n 24\\n\\fpresent a cognizable issue for appellate review”); accord United States v. Gordon,\\n\\n710 F.3d 1124, 1144 n.22 (10th Cir. 2013). And we properly turn our attention to\\n\\nassessing the import of the district court’s instructions, which we presume the\\n\\njury followed.\\n\\n As noted above, the district court gave two limiting instructions, one\\n\\ndirectly in the wake of the improper testimony and one after the close of\\n\\nevidence. In brief, in its instructions, the court told the jury both (1) to disregard\\n\\nthe specific testimony about the stolen nature of the pistol, and (2) to completely\\n\\nignore any and all inferences regarding the pistol—with the clear aim of giving\\n\\nthe agent’s testimony no influence in the jury’s decision-making. In other words,\\n\\nthe court effectively instructed the jurors to act as if they had never heard the\\n\\nstolen-gun testimony and to avoid thinking about that testimony.\\n\\n Despite the seeming clarity of those instructions, Mr. Hargrove asserts that\\n\\nthe district court’s approach was inadequate because the court did not\\n\\n“specifically and expressly indicate[]” that the jury should not reach the\\n\\n“potential conclusion” that “by virtue of possessing a stolen gun, Mr. Hargrove’s\\n\\ncharacter was that of a criminal and he had a propensity to commit criminal acts.”\\n\\nAplt.’s Opening Br. at 29. He further contends that the court should have “also\\n\\nspecifically instruct[ed] the jury to refrain from considering the evidence as proof\\n\\nof [his] criminal propensity.” Aplt.’s Reply Br. at 8. In support of his position,\\n\\nMr. Hargrove cites to both Meridyth and United States v. Hardwell, 80 F.3d 1471\\n\\n\\n 25\\n\\f(10th Cir.), modified in part on reh’g, 88 F.3d 897 (10th Cir. 1996). However,\\n\\nneither of those cases supports his position.\\n\\n More specifically, Mr. Hargrove argues that the district court’s instructions\\n\\nin this case were “confusing and not particular enough” when compared to the\\n\\ndistrict court’s instructions in Meridyth because they did not specify which\\n\\ninference the jury could not make—viz., it could not infer from the stolen nature\\n\\nof the gun that Mr. Hargrove had a propensity towards crime. Aplt.’s Opening\\n\\nBr. at 29. In Meridyth, the panel observed that, after testimony was elicited from\\n\\nwhich the jury could have inferred that the defendant threatened a witness, the\\n\\ndistrict court “took great pains to instruct the jury not to infer” that such a threat\\n\\nhad taken place and that the effect of such instructions “in th[at] case” was to\\n\\n“preclude the improper inference” of the threat. 5 Meridyth, 364 F.3d at 1184.\\n\\n 5\\n To provide helpful context, we reproduce below the salient aspects of\\nthe district court’s instructions quoted in Meridyth:\\n\\n After an exhaustive discussion with counsel and my own\\n examination of this witness out of your hearing, I have\\n determined a couple of things.\\n\\n First, it appears that the United States Attorney asked the\\n question regarding why this witness moved to, in part, explain\\n why the United States Government, through the United States\\n Attorney’s Office, has provided $1000 in assistance for this\\n individual to move. You will recall that the witness said he\\n moved because of threats made against him.\\n\\n In part, an inference that you could draw from that statement was\\n that the threats were made by [a co-defendant] and Mr. Meridyth.\\n (continued...)\\n\\n 26\\n\\fJuxtaposed with the Meridyth court’s specific instructions, Mr. Hargrove\\n\\nmaintains, the district court’s instructions here were inadequate. We disagree.\\n\\n The district court’s instructions here actually had a broader prophylactic\\n\\nscope than the ones in Meridyth; they necessarily reached not only the specific\\n\\ninference relating to the stolen-gun that concerned Mr. Hargrove—i.e., the\\n\\ninference that he possessed a criminal propensity—but each and every other\\n\\ninference relating to the testimony about the gun. Recall that the court explicitly\\n\\nand unequivocally instructed the jury to “to disregard anything regarding that\\n\\nfirearm or its ownership.” R., Vol. III, at 284 (emphasis added). Anything means\\n\\nanything. More specifically, anything would include any criminal-propensity\\n\\ninferences stemming from the stolen nature of the gun. Moreover, the court did\\n\\nnot take any chances that the jury might not comprehend its all-encompassing\\n\\ninstructions that the jury should put out of mind any inferences related to the\\n\\n\\n\\n 5\\n (...continued)\\n I am telling you now that that would be an improper inference,\\n based on all of the information I now know. You will recall that\\n this witness was working on at least 40 cases with the drug task\\n force. That gives this witness ample opportunity to make a lot of\\n enemies.\\n\\n While I have no reason to doubt that—the likelihood that what\\n motivated him to move were threats, it can’t be said, based on\\n any credible evidence now known to the Court that those threats\\n can be connected to these defendants. And you may not infer that\\n they do, based on the evidence we now have.\\n\\n364 F.3d at 1182–83 (quoting the record).\\n\\n 27\\n\\fstolen firearm—including possible inferences regarding Mr. Hargrove’s criminal\\n\\npropensities. The court expressly and specifically emphasized that the jury was\\n\\nnot to consider “a statement made by the agent that one of the firearms may have\\n\\nbeen stolen.” Id. Thus, based on the court’s instructions, we presume the jury\\n\\nunderstood that it was obliged not to consider any inferences based on the\\n\\ntestimony about the stolen firearm; this would necessarily include an inference\\n\\nthat Mr. Hargrove possessed a criminal propensity because the pistol was stolen. 6\\n\\n Mr. Hargrove’s only retort to this seems to be that the instructions were\\n\\n“confusing” because they “appear[ed] to only indicate that the testimony . . .\\n\\ncould not be used to find Mr. Hargrove guilty of the charged offenses.” Aplt.’s\\n\\nOpening Br. at 29. Mr. Hargrove is correct that the court’s instructions\\n\\n\\n\\n 6\\n Our decision in Wells, moreover, underscores the adequacy of the\\ncourt’s instructions. There, the subject of the defendant’s motion for mistrial was\\na witness’s improper testimony that prior to trial the defendant had been offered\\n“a plea offer” (which he presumably rejected). 739 F.3d at 532. In upholding the\\ndistrict court’s denial of the motion, we observed that the court’s “curative\\ninstruction . . . was ‘clear and concise and pertained to testimonial evidence from\\na single witness that was amenable to easy segregation in the minds of the jury.’”\\nId. at 533 (quoting Caballero, 277 F.3d at 1243). Yet, that instruction simply\\nstated: “Ladies and gentlemen, disregard that last answer. I’ll strike it from the\\nrecord. We’re getting into an area that’s not proper for jury consideration.” Id. at\\n532. Recognizing (as we do) that the adequacy of instructions must be\\nunderstood in light of all of the circumstances of a particular case, it nevertheless\\nwould strain credulity to believe that, after endorsing this brief curative\\ninstruction in Wells, this court should conclude here that the district court’s\\nbroadly protective instructions—that obliged the jury to completely disregard the\\nstolen-gun testimony and any inferences related to it—were not sufficiently clear\\nor otherwise adequate to cure any prejudice. Notably, Mr. Hargrove’s reply brief\\ndoes not respond to the government’s similar argument based on Wells.\\n\\n 28\\n\\fspecifically cautioned the jury that the stolen-gun testimony was not relevant to\\n\\nits consideration of the charged crimes:\\n\\n [W]hat’s before you are the two charges, conspiracy and\\n possession with intent on the marijuana. There isn’t any charge\\n related to firearms, their ownership, and it would be\\n inappropriate for you to consider those facts in addressing the\\n facts that are actually in front of you and the elements of the\\n charges that are actually in front of you.\\n\\nR., Vol. III, at 284. But in virtually the same breath the court spoke more\\n\\nbroadly, saying “please disregard any thought or connection relating to the\\n\\nownership of that firearm.” Id. at 284–85 (emphasis added). And this advisement\\n\\nmust be read in the context of court’s earlier instructions to the jury, which made\\n\\nplain that it must “disregard anything regarding that firearm or its ownership.”\\n\\nId. at 284 (emphasis added). Thus, the district court’s instructions here actually\\n\\ncast a wider protective net than the ones that we approved of in Meridyth.\\n\\nCaptured within this net was precisely the concern that Mr. Hargrove points to\\n\\nhere—viz., the concern that the jury might infer that he had criminal propensities\\n\\nfrom the stolen nature of the firearm. Taking all of these instructions into\\n\\naccount, we are hard-pressed to understand how a reasonable jury could have not\\n\\nunderstood that, not only could it not consider the stolen-gun testimony in finding\\n\\nhim guilty of the charged offenses, but it also could not use this testimony for any\\n\\npurpose. 7 In sum, Mr. Hargrove’s arguments based on the trial court’s\\n\\n 7\\n In any event, we question what material prejudice Mr. Hargrove\\n (continued...)\\n\\n 29\\n\\finstructions in Meridyth are unavailing.\\n\\n Lastly, Mr. Hargrove’s reliance on our decision in Hardwell is another\\n\\nwrong note in Mr. Hargrove’s tune of criminal-propensity error, which we may\\n\\naddress in short order. Specifically, Mr. Hargrove turns to Hardwell to support\\n\\nhis contention that the district court erred by not sua sponte specifically\\n\\ninstructing the jury to disregard any inference arising from the stolen-gun\\n\\ntestimony that Mr. Hargrove had a propensity to commit crimes. In this regard,\\n\\nquoting from Hardwell, 80 F.3d at 1491, Mr. Hargrove notes that we have\\n\\n“previously held that a district court committed error by failing to advise the jury\\n\\n. . . in a limiting instruction” that prior uncharged misconduct cannot be used as\\n\\nproof of criminal propensity. See Aplt.’s Opening Br. at 30 (quoting Hardwell’s\\n\\nobservation that “the court’s instructions did not expressly advise the jury that it\\n\\ncould not consider prior misconduct as proof of criminal disposition or\\n\\npropensity, which is what Rule 404(b) is intended to prevent”).\\n\\n However, Hardwell is inapposite: it expressly relates to a district court’s\\n\\n\\n\\n 7\\n (...continued)\\ncould claim even if the jury did feel free to infer from the stolen gun-testimony\\nthat he had criminal propensities, so long as it also felt obliged to honor the\\ncourt’s instructions not to use this inference in determining whether he was guilty\\nof the charged offenses. Put another way, even if the court’s instructions gave the\\njury the leeway (which they did not) to infer from the stolen-gun testimony that\\nMr. Hargrove had tendencies to be a scofflaw, it is hard to see how Mr. Hargrove\\ncould have been materially prejudiced by such an inference, if the jury stayed true\\nto the court’s instructions and did not use this inference in determining his guilt\\nof the charged offenses.\\n\\n 30\\n\\ffailure to employ appropriate limiting instructions in admitting prior wrongful-\\n\\nacts evidence under Federal Rule of Evidence 404(b), and on appeal “[a]ll four\\n\\ndefendants contend[ed] the trial court abused its discretion by admitting evidence\\n\\nof prior bad acts” under that rule. 80 F.3d at 1488. The evidence before the jury\\n\\nwas admissible for some purposes, but not others. Id. at 1491 (“[A]lthough it\\n\\ncould consider the evidence of Dennis’ and Marcel’s prior misconduct as proof of\\n\\nthe money laundering charge and 1992 cocaine sale charges, it could not consider\\n\\nthat evidence as proof of the conspiracy, except to the extent that it proved\\n\\nintent.”). Here, on the other hand, the district court did not admit the disputed\\n\\ntestimony for any purpose; it expressly excluded it. Therefore, there was no need\\n\\nfor the court to even consider providing a more specific limiting instruction\\n\\nregarding the testimony, as in Hardwell. Under the district court’s instructions,\\n\\nthe jury could not consider the stolen-gun testimony for any purpose—full stop.\\n\\nHardwell is thus inapposite.\\n\\n Accordingly, because the district court’s instructions unequivocally\\n\\nadmonished the jury that it could not consider the testimony or any inferences\\n\\nstemming from it, and because it is permissible to presume here that the jurors\\n\\nfollowed the court’s instructions, see Lamy, 521 F.3d at 1266, this factor weighs\\n\\nheavily in the government’s favor.\\n\\n 3\\n\\n Finally, we consider whether the improper remark was inconsequential in\\n\\n\\n 31\\n\\flight of the other evidence of the defendant’s guilt. See Meridyth, 364 F.3d at\\n\\n1183. This factor strongly undermines Mr. Hargrove’s position and, combined\\n\\nwith the two other factors discussed above, firmly closes the door on his mistrial\\n\\nchallenge.\\n\\n The crux of Mr. Hargrove’s argument is that the improper stolen-gun\\n\\ntestimony “completely reframed the way the jury viewed [him],” Aplt.’s Opening\\n\\nBr. at 33, because “the jury would [have] likely view[ed] him as a ‘bad’ man, the\\n\\nkind of man that would [have been] involved in a scheme to possess and distribute\\n\\nmarijuana – without regard to the actual evidence presented,” id. at 32–33.\\n\\nHowever, the weight of the “actual evidence” against Mr. Hargrove—which\\n\\nundermined his defense theory that he had no knowledge of the drug-trafficking\\n\\nactivity afoot—would have rendered any prejudice from the stolen-gun testimony\\n\\ninconsequential.\\n\\n Although the trial presented considerable evidence that pointed towards Mr.\\n\\nHargrove’s guilt, we need not detail it all here. That is because, even standing\\n\\nalone, two lines of unchallenged evidence clearly incriminated Mr. Hargrove in\\n\\nthe charged drug trafficking, and a reasonable jury could have concluded that this\\n\\nevidence convincingly belied Mr. Hargrove’s defense theory predicated on his\\n\\nunawareness of that activity. More specifically, without more, these two lines of\\n\\nevidence established that “nothing about [the Border Patrol agent’s improper]\\n\\ncomment changed the basic nature of [Mr. Hargrove’s] trial.” United States v.\\n\\n\\n 32\\n\\fKravchuk, 335 F.3d 1147, 1155 (10th Cir. 2003). 8\\n\\n First, and perhaps most damning, is the testimony from one of the\\n\\nbackpackers, Mr. Silvas-Hinojos. During trial, Mr. Silvas-Hinojos testified that\\n\\nMr. Hargrove himself met the backpackers when they arrived and personally took\\n\\nmarijuana that Mr. Silvas-Hinojos was carrying; that Mr. Hargrove arranged the\\n\\nbundles of marijuana on the bed of the truck and covered the bundles with a tarp;\\n\\nand that Mr. Hargrove put one bundle of marijuana in the backseat of the truck\\n\\nbecause the stack of bundles in the truck bed was “too high.” R., Vol. III, at\\n\\n310–13. Significantly, Mr. Silvas-Hinojos’s testimony on these matters was left\\n\\nentirely without specific challenges during the course of the trial. As such, that\\n\\nundisputed testimony unequivocally indicated that Mr. Hargrove knew of and\\n\\nactively participated in the drug exchange, undercutting his defense theory and\\n\\n 8\\n In assessing the weight of the government’s evidence and the related\\neffect of the agent’s improper stolen-gun testimony, we do not factor into the\\ncalculus the dubious testimony of Mr. Hargrove’s co-defendant, Ms. Richter. The\\ngovernment asserts that Ms. Richter’s testimony undermines Mr. Hargrove’s\\ndefense theory because she testified that Mr. Hargrove was the one who arranged\\nthe marijuana deal. To be sure, Ms. Richter, during her direct examination, did\\nfinger Mr. Hargrove as the brains behind the operation. However, we question\\nthe reliability of this ostensibly incriminating testimony because Ms. Richter\\nadmitted that she had taken full responsibility for all of the events that occurred\\nand wholly exculpated Mr. Hargrove in her plea agreement. See R., Vol. III, at\\n97 (testifying that she (i.e., Ms. Richter) had previously stated that she, and not\\nMr. Hargrove, had planned the drug transaction and that she planned it because\\nshe was in need of money). Given that the two lines of unchallenged evidence\\ndiscussed above unequivocally pointed the jury to Mr. Hargrove’s\\nguilt—rendering the effect of the agent’s improper stolen-gun testimony\\ninconsequential—we need not rely on Ms. Richter’s dubious testimony to support\\nour analysis here.\\n\\n 33\\n\\fpointing directly toward a guilty verdict. Notably, Mr. Hargrove likewise fails to\\n\\naddress the significance of this testimony on appeal.\\n\\n Second, the government presented testimony from numerous agents\\n\\nthroughout trial that Mr. Hargrove’s defense that he thought the marijuana (all\\n\\n297 pounds of it) was alfalfa was incredible because alfalfa and marijuana smell\\n\\nnothing alike and are packaged in entirely distinct ways. See, e.g., id. at 47 (“Q.\\n\\nDid you notice anything when [Ms. Richter] rolled down the window? A. I could\\n\\nimmediately smell the smell of marijuana. Q. Have you spent any time around\\n\\nalfalfa, [agent]? A. A little bit. My aunt had a cattle farm down in Mexico,\\n\\ngrowing up. I’ve been around it. And also, through the work here, I’ve seen it.\\n\\nQ. Does it smell anything like marijuana? A. No, it does not.”); see also id. at\\n\\n65–66 (testifying that alfalfa is not packaged the same way as marijuana:\\n\\n“[Alfalfa is] actually not packaged. It’s kind of bounded [sic] together by wire.\\n\\nAs far as I know, they try to keep all the moisture out of it because if it gets wet\\n\\nor whatever . . . it spoils, so . . . they try to keep it open-air”); id. at 66–67 (“Q.\\n\\nAnd in your 12 years as a law enforcement officer, have you encountered a lot of\\n\\nmarijuana? A. Yes, sir. Q. Do you know what marijuana smells like? A. I do.\\n\\nQ. In your experience, does alfalfa smell like marijuana? A. Not at all”); id. at\\n\\n238 (after testifying that the marijuana was packaged in bundles, an agent further\\n\\ntestifying: “Q. Have you seen alfalfa before? A. Yes, sir, I have. Q. In your\\n\\nexperience, how is alfalfa packaged? A. Usually, three strand wires, maybe four\\n\\n\\n 34\\n\\fstrands, sometimes twine”). The ample testimony on this front would have made\\n\\npatent to the jury that Mr. Hargrove’s defense was based on a far-fetched\\n\\nassertion that he mistakenly believed that the marijuana was alfalfa. Again, Mr.\\n\\nHargrove does not raise any specific challenge to this testimony on appeal.\\n\\n Thus, we believe that these two lines of evidence, taken by themselves,\\n\\nstrongly and convincingly directed the jury to a guilty verdict. Therefore, we are\\n\\nquite confident that any “improper effect [the Border Patrol agent’s] intimations\\n\\nmay have had on the jury . . . pales in comparison to the total weight of the\\n\\ngovernment’s evidence.” Lamy, 521 F.3d at 1266. Accordingly, we conclude that\\n\\nthis factor too weighs in favor of affirming the district court’s denial of Mr.\\n\\nHargrove’s motion for mistrial.\\n\\n ***\\n\\n In light of the above analysis, and given that all three factors of the\\n\\nMeridyth test weigh in favor of the government, we conclude that the district\\n\\ncourt did not abuse its discretion in denying Mr. Hargrove’s motion for a mistrial.\\n\\n B\\n\\n We now turn to Mr. Hargrove’s second challenge: he contends that the\\n\\ndistrict court erred when it did not grant him a U.S.S.G. § 5C1.2 safety-valve\\n\\nadjustment during sentencing. More specifically, Mr. Hargrove argues that the\\n\\ndistrict court “erred by considering only Mr. Hargrove’s possession of the\\n\\nfirearms and their and his proximity to the marijuana, without taking into account\\n\\n\\n 35\\n\\fMr. Hargrove’s own conduct.” Aplt.’s Opening Br. at 7. We disagree and affirm\\n\\nthe district court’s safety-valve ruling. In the following discussion, we recount\\n\\n(1) the district court’s ruling, (2) our standard of review, (3) the legal framework\\n\\ngoverning our analysis, and (4) how that framework applies in this case.\\n\\n 1\\n\\n Generally, the district court evaluated whether Mr. Hargrove possessed the\\n\\nfirearms “in connection with the offense,” U.S.S.G. § 5C1.2(a)(2), by looking to\\n\\ntheir “proximity and potential to facilitate the offense.” R., Vol. I, at 24 (quoting\\n\\nUnited States v. Andrade-Vargas, 459 F. App’x 762, 767 (10th Cir. 2012)\\n\\n(unpublished)). Applying that rubric, the district court concluded that Mr.\\n\\nHargrove was not eligible for the safety-valve reduction because (1) the firearms\\n\\nwere located “in the cab of the pickup truck with Defendant and the marijuana,”\\n\\nand thus were in close proximity to the drug trafficking, and (2) the firearms “had\\n\\nthe potential” to facilitate the drug trafficking, even if the firearms did not do so\\n\\ndirectly. Id.\\n\\n More specifically, the district court highlighted several facts in support of\\n\\nits decision, including: that Mr. Hargrove, the drugs, and both guns were all in the\\n\\ncab of the pickup truck—with the pistol on the dashboard and the rifle behind the\\n\\nfront seat; that both guns were loaded; and that Mr. Hargrove evinced knowledge\\n\\nof the location of the guns, since he voluntarily told the agents about them. The\\n\\ncourt expressly took note of Mr. Hargrove’s exculpatory statements “that he had\\n\\n\\n 36\\n\\fno knowledge of the marijuana, he was in the area to fish, and he thought the\\n\\nbundles of marijuana were alfalfa,” but effectively declined to credit those\\n\\nstatements, finding instead that “[t]he presence of firearms was not coincidental\\n\\nor entirely unrelated to the drug transaction.” Id. at 22, 24; see also id., Vol. III,\\n\\nat 8 (regarding the presence of the guns, the district court stated: “If I’m going to\\n\\nmy first big drug deal in Rodeo -- in a farm outside Rodeo, New Mexico, in the\\n\\ndark of the night with a bunch of guys, backpackers, coming over the hill, I might\\n\\nthink I needed to be protected”). In sum, the district court determined that Mr.\\n\\nHargrove “ha[d] not met his burden by a preponderance of the evidence to\\n\\ndemonstrate eligibility for the safety valve” and thus he was “subject to the\\n\\nstatutory mandatory minimum sentence of 60 months.” Id., Vol. I, at 24.\\n\\n 2\\n\\n We review the district court’s denial of U.S.S.G. § 5C1.2 safety-valve\\n\\nrelief for clear error, “giving due deference to the district court’s application of\\n\\nthe Sentencing Guidelines to the facts.” United States v. Zavalza-Rodriguez, 379\\n\\nF.3d 1182, 1184 (10th Cir. 2004). “Clear error exists if a factual finding ‘is\\n\\nwholly without factual support in the record, or after reviewing the evidence, we\\n\\nare definitively and firmly convinced that a mistake has been made.’” United\\n\\nStates v. Hooks, 551 F.3d 1205, 1217 (10th Cir. 2009) (quoting United States v.\\n\\nIvory, 532 F.3d 1095, 1103 (10th Cir. 2008)). And this deferential standard of\\n\\nreview “applies equally regardless of whether the district court’s factual findings\\n\\n\\n 37\\n\\fare based on credibility determinations or on documentary evidence.” La\\n\\nResolana Architects, PA v. Reno, Inc., 555 F.3d 1171, 1177 (10th Cir. 2009);\\n\\naccord United States v. Little, 60 F.3d 708, 713 (10th Cir. 1995); see also United\\n\\nStates v. Galvon-Manzo, 642 F.3d 1260, 1270–71 (10th Cir. 2011) (observing, in\\n\\nanalyzing defendant’s challenge to safety-valve determination, that although\\n\\ndistrict court’s evaluation of attorney reports did not evaluate the defendant’s\\n\\ncredibility “in the typical sense, the court was considering the truthfulness and\\n\\n‘credibility’ of all the information he provided in various ways to the government\\n\\nand to the court,” and declining to disturb the district court’s “obvious[]”\\n\\ndetermination that defendant was not trustworthy).\\n\\n 3\\n\\n a\\n\\n Congress has enacted mandatory-minimum sentencing provisions for many\\n\\ndifferent crimes, including the drug-trafficking offenses at issue here. See, e.g.,\\n\\n21 U.S.C. §§ 841(a)(1), (b)(1)(B). However, Congress has “refine[d]” the\\n\\noperation of those mandatory-minimum provisions for “the least culpable\\n\\nparticipants” in federal drug-trafficking offenses by creating an exception to\\n\\nmandatory-minimum sentences, known as the safety valve, which applies when\\n\\ndefendants meet certain criteria. H.R. R EP . N O . 103-460, at 3 (1994), 1994 WL\\n\\n107571; see 18 U.S.C. § 3553(f); see also United States v. Pena-Sarabia, 297\\n\\nF.3d 983, 988 (10th Cir. 2002) (“The basic purpose of the safety valve was ‘to\\n\\n\\n 38\\n\\fpermit courts to sentence less culpable defendants to sentences under the\\n\\nguidelines, instead of imposing mandatory minimum sentences.’” (quoting\\n\\nAcosta-Olivas, 71 F.3d at 378)); accord United States v. Brooks, 722 F.3d 1105,\\n\\n1108 (8th Cir. 2013) (“In the safety valve statute and parallel advisory guidelines\\n\\nprovision, ‘Congress provided relief for less culpable drug offenders from its\\n\\nharsh mandatory minimum sentences.’” (quoting United States v. Tournier, 171\\n\\nF.3d 645, 646 (8th Cir. 1999))).\\n\\n At Congress’s direction, the Sentencing Commission has inserted the safety\\n\\nvalve provision into the Guidelines. See U.S.S.G. § 5C1.2, cmt. background.\\n\\nSection 5C1.2(a) provides relief under the safety valve if the defendant can meet\\n\\nthe following criteria:\\n\\n (1) the defendant does not have more than 1 criminal history\\n point, as determined under the sentencing guidelines before\\n application of subsection (b) of §4A1.3 (Departures Based on\\n Inadequacy of Criminal History Category);\\n\\n (2) the defendant did not use violence or credible threats of\\n violence or possess a firearm or other dangerous weapon (or\\n induce another participant to do so) in connection with the\\n offense;\\n\\n (3) the offense did not result in death or serious bodily injury to\\n any person;\\n\\n (4) the defendant was not an organizer, leader, manager, or\\n supervisor of others in the offense, as determined under the\\n sentencing guidelines and was not engaged in a continuing\\n criminal enterprise, as defined in 21 U.S.C. § 848; and\\n\\n (5) not later than the time of the sentencing hearing, the\\n\\n\\n 39\\n\\f defendant has truthfully provided to the Government all\\n information and evidence the defendant has concerning the\\n offense or offenses that were part of the same course of conduct\\n or of a common scheme or plan, but the fact that the defendant\\n has no relevant or useful other information to provide or that the\\n Government is already aware of the information shall not\\n preclude a determination by the court that the defendant has\\n complied with this requirement.\\n\\n§ 5C1.2(a)(1)–(5) (emphases added). 9 The defendant bears the burden of\\n\\nsatisfying all five criteria by a preponderance of the evidence. United States v.\\n\\nVerners, 103 F.3d 108, 110 (10th Cir. 1996). If the defendant satisfies all five\\n\\ncriteria, the sentencing “court shall impose a sentence without regard to a\\n\\nstatutory minimum.” Zavalza-Rodriguez, 379 F.3d at 1185.\\n\\n b\\n\\n Here, only the second criterion—whether Mr. Hargrove “possess[ed] a\\n\\nfirearm . . . in connection with the offense”—is at issue because the government\\n\\nhas conceded that Mr. Hargrove otherwise qualifies for the safety valve. We note\\n\\nthree principles informing what it means to possess a firearm “in connection with\\n\\nthe offense,” before summarizing one case particularly important to our analysis.\\n\\n i\\n\\n First, we have held that a firearm is possessed “in connection with the\\n\\noffense” if the firearm facilitates or, as relevant here, has the “potential to\\n\\nfacilitate” the offense. United States v. Hallum, 103 F.3d 87, 89 (10th Cir. 1996),\\n\\n 9\\n These five criteria replicate the relevant statute’s requirements. See\\n18 U.S.C. § 3553(f)(1)–(5).\\n\\n 40\\n\\foverruled on other grounds by Pena-Sarabia, 297 F.3d at 989 & n.2 (overruling\\n\\nby an en banc footnote). Hallum’s “facilitate or potential to facilitate” concept\\n\\narose out of statutory and Guidelines provisions that are analogous to the firearms\\n\\ncomponent of the safety-valve provision. For example, we interpreted similar\\n\\nlanguage in the Guidelines enhancement for defendants who possess a firearm “in\\n\\nconnection with another felony offense” as applying when “the weapon facilitates\\n\\nor has the potential to facilitate . . . the offense.” United States v. Walters, 269\\n\\nF.3d 1207, 1219 (10th Cir. 2001) (quoting United States v. Gomez-Arrellano, 5\\n\\nF.3d 464, 466–67 (10th Cir. 1993)). 10\\n\\n In doing so, we relied on the Supreme Court’s interpretation of whether a\\n\\nfirearm was used “in relation to” an offense in Smith v. United States, 508 U.S.\\n\\n223, 238 (1993), partially abrogated on other grounds by Bailey v. United States,\\n\\n516 U.S. 137 (1995). See Gomez-Arrellano, 5 F.3d at 466–67. In Smith, the\\n\\nSupreme Court had interpreted the “in relation to” language as requiring that “the\\n\\ngun at least must ‘facilitat[e], or ha[ve] the potential of facilitating,’ the drug\\n\\n\\n\\n 10\\n Walters and Gomez-Arrellano both addressed previous iterations of\\nU.S.S.G. § 2K2.1(b)(5). See U.S.S.G. § 2K2.1(b)(5) (1992) (“If the defendant\\nused or possessed any firearm or ammunition in connection with another felony\\noffense; or possessed or transferred any firearm or ammunition with knowledge,\\nintent, or reason to believe that it would be used or possessed in connection with\\nanother felony offense, increase by 4 levels. If the resulting offense level is less\\nthan level 18, increase to level 18.”); U.S.S.G. § 2K2.1(b)(5) (1998) (same); see\\nalso Walters, 269 F.3d at 1218; Gomez-Arrellano, 5 F.3d at 466. The Guidelines\\napplicable at the time of the offense contained similar language. U.S.S.G. §\\n2K2.1(b)(6)(B) (2016).\\n\\n 41\\n\\ftrafficking offense.” 508 U.S. at 238 (quoting United States v. Stewart, 779 F.2d\\n\\n538, 539 (9th Cir. 1985) (Kennedy, J.), overruled in part on other grounds, as\\n\\nrecognized in Muscarello v. United States, 524 U.S. 125, 137 (1998)). 11 Thus, in\\n\\nlight of the foregoing, we should consider Mr. Hargrove’s possession of the\\n\\nfirearms to have been “in connection with the offense” only if the firearms\\n\\nfacilitated or had the potential to facilitate the offense.\\n\\n Second, we have focused on “the defendant’s own conduct” in evaluating\\n\\nhis eligibility for safety-valve relief. Zavalza-Rodriguez, 379 F.3d at 1186.\\n\\nThus, for example, we have ruled that proof of “a joint criminal actor’s\\n\\nreasonably foreseeable possession of a firearm” is not “sufficient to foreclose” a\\n\\ndefendant from receiving safety-valve relief. Pena-Sarabia, 297 F.3d at 988–89\\n\\n& n.2 (overruling Hallum “to the extent it is inconsistent with th[is] rule” of law).\\n\\nThis focus on a defendant’s own conduct is fully in accord with the Sentencing\\n\\nCommission’s commentary, which ordinarily controls our interpretation of the\\n\\nadvisory Guidelines. See United States v. Gieswein, 887 F.3d 1054, 1058 (10th\\n\\n\\n\\n 11\\n Though the Hallum panel did not expressly mention the historical\\norigins of the “potential to facilitate” linguistic formulation, other panels of this\\ncourt, albeit in unpublished decisions, have recognized its historical roots. See\\nUnited States v. Archuleta, 257 F. App’x 116, 123 (10th Cir. 2007) (unpublished)\\n(connecting Hallum’s “potential to facilitate” language with Walters, 18 U.S.C. §\\n924(c)(1), and U.S.S.G. § 2K2.1(b)(5)); see also United States v. Castaneda\\nAscencio, 260 F. App’x 69, 71–72 (10th Cir. 2008) (unpublished) (quoting and\\naffirming the district court’s statement that Gomez-Arrellano’s “analysis is\\napplicable to the application of Sentencing Guideline Section 5C1.2,” before\\nrelying on Hallum’s “potential to facilitate” language).\\n\\n 42\\n\\fCir.) (noting that the Guidelines “commentary from the Sentencing Commission is\\n\\n‘authoritative unless it violates the Constitution or a federal statute, or is\\n\\ninconsistent with, or a plainly erroneous reading of, that guideline’” (quoting\\n\\nStinson v. United States, 508 U.S. 36, 38 (1993))), cert. denied, 139 S. Ct. 279\\n\\n(2018); accord United States v. Lucero, 747 F.3d 1242, 1247 (10th Cir. 2014).\\n\\nAs relevant here, the Commission expressly “limit[ed] the accountability of the\\n\\ndefendant to his own conduct and conduct that he aided or abetted, counseled,\\n\\ncommanded, induced, procured, or willfully caused.” U.S.S.G. § 5C1.2 cmt. n.4\\n\\n(emphasis added).\\n\\n Third and relatedly, Zavalza-Rodriguez emphasized that “possession in\\n\\n§ 5C1.2(a)(2) is an active possession whereby there is a close connection linking\\n\\nthe individual defendant, the weapon and the offense.” 379 F.3d at 1187\\n\\n(emphasis added).\\n\\n ii\\n\\n Zavalza-Rodriguez offers helpful instruction regarding the contours of the\\n\\n“own conduct” and “active possession” principles described supra. Therefore, we\\n\\nturn to look at Zavalza-Rodriguez in more depth.\\n\\n Zavalza-Rodriguez discussed these two principles in explaining why the\\n\\nfirearms provision of the safety valve is materially distinct from a related firearms\\n\\nenhancement in § 2D1.1(b)(1). That Guideline provides for an offense-level\\n\\nenhancement for certain convicted drug traffickers “[i]f a dangerous weapon\\n\\n\\n 43\\n\\f(including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). In\\n\\nZavalza-Rodriguez, police officers found the defendant in a home that contained\\n\\nnarcotics, material used to package narcotics, five firearms, and a large amount of\\n\\ncash. 379 F.3d at 1184. The officers found one of the firearms, a loaded\\n\\nsemiautomatic pistol, in the room where the defendant was staying. Id. The\\n\\nhome was owned by a third party who also was involved in selling narcotics, and\\n\\nthe defendant claimed that he had only spent one night in the home. Id.\\n\\n In his plea agreement, the defendant had stipulated to a sentencing\\n\\nenhancement pursuant to § 2D1.1(b)(1), which applies when “a dangerous weapon\\n\\n(including a firearm) was possessed,” based on the presence of the pistol;\\n\\nhowever, the defendant separately argued that he was eligible for the safety valve\\n\\nbecause the gun was not possessed “in connection with” the offense within the\\n\\nmeaning of § 5C1.2. Id. In particular, while the defendant acknowledged that he\\n\\nhad constructively possessed the gun through his knowledge of the gun’s presence\\n\\nin the bedroom where he stayed, he denied ever actually possessing or even\\n\\ntouching the gun. Id. at 1184–85. The district court accepted this argument, and\\n\\nheld the defendant was eligible for the safety valve, because there was a lack of\\n\\nevidence connecting the defendant to the gun. Id. at 1184.\\n\\n We affirmed. To start, we “explain[ed] that while a § 2D1.1(b)(1) sentence\\n\\nenhancement applies to a defendant for a co-conspirator’s possessing a weapon, a\\n\\ndefendant is not precluded from receiving a safety valve reduction [in the context\\n\\n\\n 44\\n\\fof such a conspiracy] based on the defendant’s individual conduct,” if that\\n\\nconduct does not run afoul of the firearms component of the safety-valve\\n\\nprovision. Id. at 1186 (emphasis added); see also id. (noting that, “[a]lthough\\n\\nconspiracy was not charged in the information, [the defendant’s] situation is\\n\\nclosely analogous to the facts of these cases”). This is because in evaluating the\\n\\nsafety-valve provision, unlike § 2D1.1(b)(1), we focus on the defendant’s “own\\n\\nconduct” and “recognize a distinction between constructive and actual\\n\\npossession.” Id. Thus, while a co-conspirator’s possession of a firearm might\\n\\nsatisfy § 2D1.1(b)(1), the Guidelines commentary to the safety-valve provision\\n\\nlimits a defendant’s accountability to his “own conduct.” U.S.S.G. § 5C1.2 cmt.\\n\\nn.4.\\n\\n As for “active possession” of a firearm—which, as noted, entails a “close\\n\\nconnection linking the individual defendant, the weapon and the offense”—we\\n\\nreasoned that this requirement prevents mere constructive possession (without\\n\\nmore) from satisfying the safety-valve provision, though it might satisfy\\n\\n§ 2D1.1(b)(1). Zavalza-Rodriguez, 379 F.3d at 1186–87. 12 However, we\\n\\nspecifically distinguished situations involving mere constructive possession, as in\\n\\nZavalza-Rodriguez, from those where a defendant acknowledged actual\\n\\n 12\\n See also United States v. Gutierrez-Casillas, 140 F. App’x 26, 28\\n(10th Cir. 2005) (unpublished) (“We concluded [in Zavalza-Rodriguez] that\\n§ 2D1.1(b)(1) merely requires ‘constructive possession,’ based on proximity of\\nthe gun, whereas § 5C1.2 requires ‘actual possession,’ which is characterized by a\\ncloser degree of connection.” (quoting Zavalza-Rodriguez, 379 F.3d at 1186–88)).\\n\\n 45\\n\\fpossession of a firearm. Id. at 1186 n.2. Taking note of our prior precedent,\\n\\nespecially Hallum, we acknowledged that, when a defendant “did not argue that\\n\\nthe gun was not actually his nor that it was merely constructively possessed,” “a\\n\\ngun’s proximity and potential to be used in connection with the offense” may well\\n\\nbe sufficient to bar safety-valve relief. Id. (citing Hallum, 103 F.3d at 89). 13\\n\\n 13\\n We made this acknowledgment in the course of harmonizing the\\nprinciples announced in Zavalza-Rodriguez with our prior precedent, most notably\\nin Hallum, where we held that “a firearm’s proximity and potential to facilitate\\nthe offense is enough to prevent application of [U.S.S.G.] § 5C1.2(2),” 103 F.3d\\nat 89. See Zavalza-Rodriguez, 379 F.3d at 1186 n.2. Because “[i]n cases of\\nconflicting circuit precedent our court ‘follow[s] earlier, settled precedent over a\\nsubsequent deviation therefrom,’” United States v. Sabillon-Umana, 772 F.3d\\n1328, 1334 n.1 (10th Cir. 2014) (quoting Haynes v. Williams, 88 F.3d 898, 900\\nn.4 (10th Cir. 1996)), it was incumbent upon the Zavalza-Rodriguez panel to\\nexplain why the dimensions of the safety-valve provision that it outlined were\\ncongruent with our earlier decision in Hallum. In other words, we recognized that\\nHallum was the law of this circuit. And, rather than purporting to overrule any\\nportion of it, as we did in Pena-Sarabia, 297 F.3d at 989 & n.2, the\\nZavalza-Rodriguez panel endeavored—as principles of stare decisis dictated—to\\nharmonize its articulation of the safety-valve’s dimensions with Hallum’s holding\\nthat a firearm’s proximity and potential to facilitate the offense may be\\ndeterminative. Given that this harmonization endeavor was a necessary step in\\nestablishing the legitimacy and integrity of Zavalza-Rodriguez’s holding, we are\\nentirely unpersuaded by Mr. Hargrove’s assertion that Zavalza-Rodriguez’s\\ndiscussion of Hallum amounted to no more than non-binding dicta. See Aplt.’s\\nOpening Br. at 15 n.5 (contending that in Zavalza-Rodriguez “the Court did not\\nneed to consider—and did not consider—whether its opinion had an impact on\\nHallum, and its discussion of Hallum is nothing more than dicta”). Compare\\nMichael Abramowicz & Maxwell Stearns, Defining Dicta, 57 S TAN . L. R EV . 953,\\n953 (2005) (“A holding consists of those propositions along the chosen decisional\\npath or paths of reasoning that are actually decided, are based upon the facts of\\nthe case, and lead to the judgment. A proposition in a case that is not holding is\\ndicta.” (emphasis added)), with Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1184\\n(10th Cir. 1995) (“Dicta are ‘statements and comments in an opinion concerning\\nsome rule of law or legal proposition not necessarily involved nor essential to\\n (continued...)\\n\\n 46\\n\\f In other words, in the parlance of Zavalza-Rodriguez, in those\\n\\ncircumstances a court may find that a defendant “actively possessed” the firearm.\\n\\n379 F.3d at 1188. This makes sense. Where a defendant’s actual possession is\\n\\nundisputed, the sentencing court may find—by focusing on the defendant’s own\\n\\nconduct—the close connection that active possession requires between the\\n\\ndefendant and the firearm. As Zavalza-Rodriguez suggests, in a scenario of\\n\\nconstructive possession, ordinarily more would be required to establish such a\\n\\nclose connection. Compare id. at 1186 (noting that “we focus on the defendant’s\\n\\nown conduct for purposes of evaluating eligibility for the safety valve, and that\\n\\nwe recognize a distinction between constructive and actual possession”), with\\n\\nAndrade-Vargas, 459 F. App’x at 764, 768 (declaring “mistaken” the notion that\\n\\nZavalza-Rodrigruez held that “one must have actual physical possession of the\\n\\nfirearm to make him ineligible for a safety valve reduction” and ruling in a\\n\\ncircumstance where the defendant argued that “no evidence showed anyone saw\\n\\nhim possessing a firearm” that constructive possession was sufficient to establish\\n\\nthe active possession that Zavalza-Rodriguez requires, where the defendant had\\n\\n“knowledge and control of the firearms found in the bedroom he rented and had\\n\\nexclusive control over”). And, once the close connection between the defendant\\n\\nand the firearm is established, proof that the firearm was in close proximity to the\\n\\n 13\\n (...continued)\\ndetermination of the case in hand.’” (emphasis added) (quoting Dicta, B LACK ’ S\\nL AW D ICTIONARY (6th ed. 1990)).\\n\\n 47\\n\\foffense and had the potential to facilitate the offense would round out the features\\n\\nof Zavalza-Rodriguez’s “active possession” requirement by demonstrating the\\n\\nclose connection between the firearm and the offense. See United States v.\\n\\nPayton, 405 F.3d 1168, 1171 (10th Cir. 2005) (noting, where defendant actually\\n\\npossessed the firearms, that “[t]he mere propinquity of the weapons and drugs\\n\\nsuggests a connection between the two”).\\n\\n In sum, our cases teach that a firearm is used “in connection with an\\n\\noffense” when it facilitates or has the “potential to facilitate” that offense.\\n\\nHallum, 103 F.3d at 89. The focus of our inquiry is “the defendant’s own conduct\\n\\nfor purposes of evaluating eligibility for the safety valve.” Zavalza-Rodriguez,\\n\\n379 F.3d at 1186 (emphasis added). And the kind of firearms possession that bars\\n\\napplication of the safety valve is “active possession whereby there is a close\\n\\nconnection linking the individual defendant, the weapon and the offense.” Id. at\\n\\n1187. Lastly, in circumstances where the defendant’s own conduct evinces actual\\n\\npossession of the firearm, we have recognized that active possession may be\\n\\nshown by evidence of “[that] firearm’s proximity and potential to facilitate the\\n\\noffense.” Hallum, 103 F.3d at 89; see Zavalza-Rodriguez, 379 F.3d at 1186 n.2.\\n\\n 4\\n\\n As noted, Mr. Hargrove contends that the district court “erred by\\n\\nconsidering only Mr. Hargrove’s possession of the firearms and their and his\\n\\nproximity to the marijuana, without taking into consideration Mr. Hargrove’s own\\n\\n\\n 48\\n\\fconduct—a consideration required by this Court’s authorities.” Aplt.’s Opening\\n\\nBr. at 7. However, under the legal principles discussed above, Mr. Hargrove’s\\n\\nargument cannot prevail.\\n\\n a\\n\\n In Zavalza-Rodriguez, we expressly acknowledged that when a defendant\\n\\nconcedes actual possession of a firearm (as opposed to mere constructive\\n\\npossession), the requirement of active possession—based on defendant’s own\\n\\nconduct—may be rounded out and completed by further evidence that the\\n\\npossessed firearm was in close proximity to the offense and had the potential to\\n\\nfacilitate it. See 379 F.3d at 1186 n.2. Accordingly, contrary to Mr. Hargrove’s\\n\\nassertion, on these facts—where Mr. Hargrove freely admitted that the firearms\\n\\nbelonged to him and indicated that he had brought them in the vehicle to the\\n\\nscene of his arrest—the district court’s express focus on the firearms’ proximity\\n\\nand potential to facilitate the offense did not reflect an analytical disregard of Mr.\\n\\nHargrove’s own conduct.\\n\\n Indeed, Mr. Hargrove’s admissions regarding possession of the firearms\\n\\nplaced his own conduct front and center, and they were the jumping-off point for\\n\\nthe court’s further inquiries into proximity and facilitation. In other words, by\\n\\nfocusing on Mr. Hargrove’s admissions regarding his own conduct, the court\\n\\ncould discern that Mr. Hargrove actually possessed the firearms at some point\\n\\nduring the trip—at least likely so at the trip’s beginning, when the firearms were\\n\\n\\n 49\\n\\fplaced in the vehicle—and had the firearms in close proximity to him thereafter,\\n\\nincluding at the time of his arrest. These admissions were sufficient to establish\\n\\nthe close connection required for active possession between Mr. Hargrove and the\\n\\nfirearms. At that point, the court was left with the task of determining whether\\n\\nthe requisite close connection existed between the firearms and the offense, so as\\n\\nto establish active possession. As Zavalza-Rodriguez acknowledged, this close\\n\\nconnection—under circumstances such as these—could be established where the\\n\\nfirearm was in close proximity to and had the potential to facilitate the offense.\\n\\nSee 379 F.3d at 1186 n.2.\\n\\n And that was certainly true here. As noted, the district court specifically\\n\\nfound (1) that the firearms were located “in the cab of the pickup truck with\\n\\nDefendant and the marijuana,” and thus were in close proximity to the drug\\n\\ntrafficking, and (2) that the firearms—which were loaded—“had the potential” to\\n\\nfacilitate the drug trafficking, even if the firearms did not do so directly. R., Vol.\\n\\nI, at 24. There is ample evidence in the record to support these factual findings.\\n\\nAnd it is well established that firearms are “‘tools of the trade’—that is, means\\n\\nfor the distribution of illegal drugs.” United States v. Martinez, 938 F.2d 1078,\\n\\n1083 (10th Cir. 1991) (quoting United States v. Wiener, 534 F.2d 15, 18 (2d Cir.\\n\\n1976)); accord United States v. McGehee, 672 F.3d 860, 872 (10th Cir. 2012); see\\n\\nalso United States v. Burkley, 513 F.3d 1183, 1188 (10th Cir. 2008) (noting that\\n\\n“evidence of Defendant’s firearm possession would have been admissible to prove\\n\\n\\n 50\\n\\fhis intent to distribute marijuana”). Firearms are used by drug traffickers (among\\n\\nother things) to protect themselves from other criminals and to safeguard their\\n\\nvaluable narcotics from theft. See, e.g., United States v. Lott, 310 F.3d 1231,\\n\\n1248 (10th Cir. 2002) (“We conclude that the placement of a loaded,\\n\\nsemi-automatic weapon on the driver’s seat of the car in which the\\n\\ninstrumentalities of methamphetamine manufacturing were also found is sufficient\\n\\nevidence from which a jury could conclude that the purpose of the gun was to\\n\\nprovide defense or deterrence in furtherance of attempting to manufacture\\n\\nmethamphetamine.”); see also United States v. King, 632 F.3d 646, 657 (10th Cir.\\n\\n2011) (“Because the loaded rifle in this case was located immediately adjacent to\\n\\nthe drugs, a reasonable jury could infer that it furthered [the defendant’s] drug\\n\\ntrade by protecting [the defendant] and his merchandise.”). Thus, Mr. Hargrove’s\\n\\nloaded guns certainly had the potential to fulfill this protective purpose and, as\\n\\nthe district court specifically ruled, they had the potential to facilitate the drug-\\n\\ntrafficking offense.\\n\\n To be sure, Mr. Hargrove has argued that his possession of the firearms was\\n\\nunrelated to the drug-trafficking activity. In this regard, before the district court,\\n\\nhe asserted “that he had no knowledge of the marijuana, he was in the area to fish,\\n\\nand he thought the bundles of marijuana were alfalfa.” R., Vol. I, at 22.\\n\\nHowever, the court effectively discounted these statements in determining that\\n\\n“[t]he presence of the firearms was not coincidental or entirely unrelated to the\\n\\n\\n 51\\n\\fdrug transaction.” Id. at 24. 14 And nothing in this record gives us pause in\\n\\naccording this factual determination the customary measure of deference. See,\\n\\ne.g., Hooks, 551 F.3d at 1217.\\n\\n Mr. Hargrove repeatedly objects that the district court did not take into\\n\\naccount that there was “no evidence that Mr. Hargrove had ever been involved in\\n\\nany sort of drug distribution,” Aplt.’s Reply Br. at 14 n.4, and “did not find that\\n\\nMr. Hargrove actually used or attempted to use the firearms in any way,” Aplt.’s\\n\\nOpening Br. at 10. See Aplt.’s Opening Br. at 21 (noting that “Mr. Hargrove has\\n\\nno criminal history relating to the distribution of drugs or the use of firearms, let\\n\\nalone at the same time”); Aplt.’s Reply Br. at 17 (“There must be something more\\n\\nin the way of the defendant’s own conduct (such as evidence the defendant had\\n\\nbeen running a drug operation or evidence that the defendant planned to use the\\n\\nweapon against human beings) that establishes the weapons were connected to the\\n\\noffense.”). However, Mr. Hargrove cites no Tenth Circuit authority holding that a\\n\\ndefendant’s prior drug-trafficking activities or actual use of the firearm are\\n\\nnecessary to establish active possession—much less that such factors are\\n\\n 14\\n Panels of this court have frequently declined to credit self-serving\\nstatements about the purpose of a defendant’s firearm possession. See, e.g.,\\nAndrade-Vargas, 459 F. App’x at 768 (“[I]t is evident that, in denying the\\nreduction, the district court discredited Mr. Andrade-Vargas’s seemingly\\nself-serving claims he did not own the handguns and that they were not in the\\nroom for the purpose of facilitating his drug trafficking activities—both of which\\nwere unsupported by any evidence.”); Gutierrez-Casillas, 140 F. App’x at 28\\n(affirming district court’s decision to “discount[]” each defendant’s credibility\\n“by self-interest” (quoting record)).\\n\\n 52\\n\\fdeterminative. 15 In particular, there is nothing in Zavalza-Rodriguez that supports\\n\\nsuch a proposition. In fact, we have binding Tenth Circuit authority to the\\n\\ncontrary—that is, where neither prior drug-trafficking activity nor actual use of\\n\\nthe firearm appeared to play any role in our denial of safety-valve relief. See\\n\\nHallum, 103 F.3d at 89.\\n\\n In sum, based on the foregoing, we reject Mr. Hargrove’s argument that the\\n\\ndistrict court failed to properly focus on his own conduct and, thus, did not\\n\\ncorrectly determine his eligibility for safety-valve relief. In our view, the district\\n\\ncourt’s ruling is sound and consistent with our caselaw.\\n\\n b\\n\\n A closer inspection of our precedential Hallum decision only serves to\\n\\nunderscore the correctness of our judgment. Indeed, even standing alone,\\n\\nHallum—which involved materially similar facts—would arguably be\\n\\ndeterminative. In Hallum, officers apprehended Mr. Hallum and two accomplices\\n\\nwho were carrying duffle bags full of marijuana from a marijuana patch to their\\n\\nvehicles, which were parked “200 to 300 yards” away from the patch. 103 F.3d at\\n\\n89. After searching the vehicles, the officers found a .22 caliber rifle, which Mr.\\n\\n\\n\\n 15\\n Mr. Hargrove relatedly asserts that “the precedential authority\\nrequires some affirmative action on the part of a defendant to establish that a\\nweapon was possessed ‘in connection with the offense.’” Aplt.’s Reply Br. at 11\\n(emphasis added). But Mr. Hargrove cites no precedential authority to support\\nthis assertion, merely directing us to the plain text of § 5C1.2(a)(2), which is\\nunavailing.\\n\\n 53\\n\\fHallum later conceded was his. Mr. Hallum testified that he brought the rifle “to\\n\\nshoot snakes, and that while he could have used it to protect against another\\n\\nperson he did not have that intention and ‘would have not wanted to.’” Id.\\n\\n(quoting record). “The district court rejected the essence of Hallum’s testimony,\\n\\ndeclaring that if defendants were afraid of and protecting against snakes they\\n\\nwould not have left the rifle in the vehicle some 200 yards from the marijuana\\n\\npatch.” Id. The district court further found that “the weapon was close to the\\n\\nmarijuana cultivation activity, and accessible.” Id. (quoting record).\\n\\n We affirmed the district court’s denial of Mr. Hallum’s safety-valve\\n\\nrequest. We deemed it significant that Mr. Hallum admitted that he had the gun\\n\\n“for protection.” Id. (quoting record). “This plus the district court’s other\\n\\nfindings . . . establish[ed] proximity of the firearm to the offense.” Id. And, on\\n\\nthese facts, we held that “a firearm’s proximity and potential to facilitate the\\n\\noffense is enough to prevent application of [U.S.S.G.] § 5C1.2(2).” Id. Notably,\\n\\nviewed through the prism crafted by our subsequent decision in Zavalza-\\n\\nRodriguez, all of the elements of the requisite active possession were present in\\n\\nHallum: Mr. Hallum conceded his actual possession of the firearm, establishing a\\n\\nclose connection between him and the weapon, and the proximity of the firearm to\\n\\nthe marijuana and the evident drug-trafficking activity of Mr. Hallum established\\n\\nthe close connection between the weapon and the offense. See Zavalza-\\n\\nRodriguez, 379 F.3d at 1187. And Mr. Hallum acknowledged that the weapon\\n\\n\\n 54\\n\\fcould have been used as protection against other human beings, meaning that it\\n\\nhad the potential to facilitate his drug trafficking. Thus, the district court’s denial\\n\\nof safety-valve relief should come as no surprise.\\n\\n Nor should a similar outcome surprise us here. Indeed, Hallum virtually\\n\\ncommands it. 16 We begin with proximity. The officers apprehended Mr.\\n\\nHargrove in a rural area with almost 300 pounds of marijuana in his pickup truck.\\n\\n“A [loaded] semi-automatic pistol . . . was on the dashboard and a loaded rifle\\n\\nwas behind the seat.” R., Vol. I, at 21. The district court specifically noted that\\n\\n“[t]he firearms were located in the cab of the pickup truck with Defendant and the\\n\\nmarijuana.” Id. at 24. The firearms here were thus even closer to Mr. Hargrove\\n\\nand the illegal narcotics than the firearm in Hallum was to Mr. Hallum.\\n\\n\\n\\n 16\\n As we previously mentioned, Hallum was overruled in part by an en\\nbanc footnote in Pena-Sarabia, 297 F.3d at 989 & n.2. In the overruled portion\\nof Hallum, we erroneously applied the principle that “participants in joint\\ncriminal enterprises can be accountable for the foreseeable acts of others that\\nfurther the joint activity,” in concluding that Mr. Hallum’s co-conspirators, like\\nMr. Hallum, did not qualify for safety-valve relief simply because they “knew of\\nthe presence of the weapon Hallum brought to the marijuana patch; [and] that it\\nmight further their joint activity was reasonably foreseeable.” Hallum, 103 F.3d\\nat 90. But, importantly, the court’s holding and analysis with respect to Mr.\\nHallum, which we explicate in text here, has maintained its vitality. See also\\nAndrade-Vargas, 459 F. App’x at 767 (noting that “we have continued to rely on\\nour holding in Hallum that a firearm’s proximity and potential to facilitate the\\noffense may be sufficient to prevent application of the safety valve provision”);\\nUnited States v. Montgomery, 387 F. App’x 884, 888 (10th Cir. 2010)\\n(unpublished) (relying on Hallum); United States v. McClure, 358 F. App’x 5, 12\\n(10th Cir. 2009) (unpublished) (same); United States v. Gonzalez-Ambriz, 353 F.\\nApp’x 155, 157 (10th Cir. 2009) (unpublished) (same); Archuleta, 257 F. App’x\\nat 123 (same).\\n\\n 55\\n\\f Further, like Mr. Hallum, Mr. Hargrove “voluntarily informed the agents of\\n\\nthe presence of the firearms when he was seized.” Id. at 21. Mr. Hargrove told\\n\\nthe agents that he had “two weapons inside the vehicle,” the rifle and the pistol.\\n\\nId., Vol. III, at 263. In post-arrest statements, Mr. Hargrove “admitted the loaded\\n\\nrifle and pistol found in his truck belonged to him.” Id., Vol. II, ¶ 8, at 5. 17 And,\\n\\nas in Hallum, these admissions supported a finding that Mr. Hargrove actually\\n\\npossessed the firearms at some point during the trip and had them in close\\n\\nproximity to him.\\n\\n Finally, as in Hallum, Mr. Hargrove also ostensibly had the guns for\\n\\nprotection against snakes but the district court effectively discredited that\\n\\nexculpatory explanation in denying him safety-valve relief. Mr. Hargrove asserts,\\n\\nhowever, that Hallum is not “directly analogous” to this case because, even\\n\\nthough Mr. Hallum testified regarding having the firearm for protection against\\n\\nsnakes, the Hallum panel elided the snake explanation and determined that he\\n\\n“had his gun ‘for protection’ in general, which necessarily implies that it could be\\n\\nfor ‘protection’ from anything, including human beings.” Aplt.’s Reply Br. at 12.\\n\\nThe situation here, as Mr. Hargrove reasons, is different; specifically, the\\n\\n\\n\\n 17\\n Indeed, in his opening statement, Mr. Hargrove’s counsel told the\\njury that Mr. Hargrove and Ms. Richter “have a lot of things in their truck,”\\nincluding “a .25 caliber tiny little pistol” and the rifle that Mr. Hargrove “drives\\naround with.” R., Vol. III, at 204. And, during a bench conference with the\\njudge, Mr. Hargrove’s counsel plainly admitted that Mr. Hargrove “claimed\\nownership of the gun. . . . [H]e claimed ownership about it.” Id. at 278.\\n\\n 56\\n\\fevidence indicated that he had the firearms only as protection against snakes.\\n\\n This line of argument is strained and unpersuasive. It is not remarkable\\n\\nthat the Hallum panel spoke generally of Mr. Hallum having the firearms “for\\n\\nprotection,” without any reference to the snakes justification, because the panel\\n\\nhad credited the district court’s finding that Mr. Hallum’s snake story was\\n\\nincredible. 103 F.3d at 89 (noting the district court’s statement that “if\\n\\ndefendants were afraid of and protecting against snakes they would not have left\\n\\nthe rifle in the vehicle some 200 yards from the marijuana patch”). As such, Mr.\\n\\nHargrove actually is on precisely the same footing as Mr. Hallum because the\\n\\ndistrict court here also effectively found incredible Mr. Hargrove’s exculpatory\\n\\nstatements about having the guns for protection against snakes, noting specifically\\n\\nthat “[t]he presence of firearms was not coincidental or entirely unrelated to the\\n\\ndrug transaction.” R., Vol. I, at 24. By merely reiterating statements “not found\\n\\nto be credible” by the district court, Mr. Hargrove is effectively asking “us for a\\n\\nde novo determination of credibility. [However, that] is not our role.” Payton,\\n\\n405 F.3d at 1171; see Galvon-Manzo, 642 F.3d at 1270–71; Hooks, 551 F.3d at\\n\\n1217.\\n\\n In sum, Hallum cogently underscores the correctness of our decision to\\n\\nuphold the district court’s denial of safety-valve relief to Mr. Hargrove. Indeed,\\n\\ngiven the similarity of Hallum’s facts to the instant case, it is arguably\\n\\ndeterminative.\\n\\n\\n 57\\n\\f ***\\n\\n In sum, we conclude that the district court did not err in determining that\\n\\nMr. Hargrove did not establish a basis for safety-valve relief under U.S.S.G.\\n\\n§ 5C1.2.\\n\\n III\\n\\n Based on the foregoing, we AFFIRM the district court’s judgment\\n\\nregarding Mr. Hargrove’s conviction and sentence.\\n\\n\\n\\n\\n 58\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":375,"cells":{"id":{"kind":"number","value":4578612,"string":"4,578,612"},"name":{"kind":"string","value":"Jane DOE; I.B., Plaintiffs - Appellants, v. April WOODARD, in Her Individual Capacity; Christina Newbill, in Her Individual Capacity; Shirley Rhodus, in Her Individual Capacity; Richard Bengtsson, in His Individual Capacity; El Paso County Board of County Commissioners, Defendants - Appellees, and Reggie Bicha, in His Official Capacity as Executive Director of the Colorado Department of Human Services; Julie Krow, in Her Official Capacity as Executive Director of the El Paso County Department of Human Services, Defendants. Parental Rights Foundation; National Center for Housing and Child Welfare; National Coalition for Child Protection Reform ; Parent Guidance Center; Mark Freeman; Pacific Justice Institute, Amici Curiae."},"name_abbreviation":{"kind":"string","value":"Doe v. Woodard"},"decision_date":{"kind":"string","value":"2019-01-03"},"docket_number":{"kind":"string","value":"18-1066"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Briscoe, Lucero, Matheson\", \"parties\": \"\", \"opinions\": [{\"author\": \"MATHESON, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS January 3, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\nJANE DOE; I.B.,\\n\\n Plaintiffs - Appellants,\\n\\nv. No. 18-1066\\n\\nAPRIL WOODARD, in her individual\\ncapacity; CHRISTINA NEWBILL, in her\\nindividual capacity; SHIRLEY RHODUS,\\nin her individual capacity; RICHARD\\nBENGTSSON, in his individual capacity;\\nEL PASO COUNTY BOARD OF\\nCOUNTY COMMISSIONERS,\\n\\n Defendants - Appellees,\\n\\nand\\n\\nREGGIE BICHA, in his official capacity as\\nExecutive Director of the Colorado\\nDepartment of Human Services; JULIE\\nKROW, in her official capacity as\\nExecutive Director of the El Paso County\\nDepartment of Human Services,\\n\\n Defendants.\\n_______________________\\n\\nPARENTAL RIGHTS FOUNDATION;\\nNATIONAL CENTER FOR HOUSING\\nAND CHILD WELFARE; NATIONAL\\nCOALITION FOR CHILD PROTECTION\\nREFORM; PARENT GUIDANCE\\nCENTER; MARK FREEMAN; PACIFIC\\nJUSTICE INSTITUTE,\\n\\n Amici Curiae.\\n\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Colorado\\n (D.C. No. 1:15-CV-01165-KLM)\\n _________________________________\\n\\nTheresa Lynn Sidebotham, (Jessica Ross with her on the brief), of Telios Law PLLC,\\nMonument, Colorado, for Plaintiffs - Appellants.\\n\\nKenneth R. Hodges, Senior Assistant County Attorney (Diana K. May, First Assistant\\nCounty Attorney, with him on the brief), Colorado Springs, Colorado, for Defendants -\\nAppellees.\\n\\nKevin T. Snider, Pacific Justice Institute, Sacramento, California, filed an Amicus Curiae\\nbrief for Pacific Justice, in support of Appellants.\\n\\nDarren A. Jones and James R. Mason, III, Purcellville, Virginia, Martin Guggenheim and\\nCarolyn Kubitschek, Alexandria, Virginia, Diane Redleaf, College Park, Maryland, and\\nMark Freeman, Media, Pennsylvania, filed an Amici Curiae brief for Parental Rights\\nFoundation, National Center for Housing and Child Welfare, National Coalition for Child\\nProtection Reform, Parent Guidance Center, and Mark Freeman, Esq., in support of\\nAppellants.\\n _________________________________\\n\\nBefore BRISCOE, LUCERO, and MATHESON, Circuit Judges.\\n _________________________________\\n\\nMATHESON, Circuit Judge.\\n _________________________________\\n\\n I.B., a minor child, and her mother, Jane Doe (collectively, “Does”), claim that\\n\\nApril Woodard, a caseworker from the El Paso County Department of Human Services\\n\\n(“DHS”), a state agency, wrongfully searched I.B. at the Head Start preschool program\\n\\nin Colorado Springs. Without consent or a warrant, Ms. Woodard partially undressed\\n\\n\\n\\n 2\\n\\nI.B., performed a visual examination for signs of abuse, then photographed I.B.’s\\n\\nprivate areas and partially unclothed body.\\n\\n In their lawsuit, the Does alleged that Ms. Woodard and other DHS officials\\n\\nviolated the Fourth Amendment’s prohibition on unreasonable searches and the\\n\\nFourteenth Amendment’s protection against undue interference with parental rights and\\n\\nwith familial association. The Defendants moved to dismiss.1 The district court\\n\\ngranted the motion, holding that qualified immunity precludes the Fourth Amendment\\n\\nunlawful search claim and that the complaint failed to state a Fourteenth Amendment\\n\\nclaim.\\n\\n The Does appeal these rulings and the district court’s denial of leave to amend\\n\\ntheir complaint. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.\\n\\n I. BACKGROUND\\n\\n A. Factual Background\\n\\n In reviewing the grant of a motion to dismiss, we accept the allegations in the\\n\\ncomplaint as true and draw all reasonable inferences in favor of the non-moving party—\\n\\nhere, the Does. Mayfield v. Bethards, 826 F.3d 1252, 1255, 1258 (10th Cir. 2016).\\n\\n\\n\\n\\n 1\\n The Does sued six defendants, who are identified in the procedural history\\nsection below.\\n\\n 3\\n\\n In December 2014, I.B. was attending preschool at the Head Start Program in\\n\\nColorado Springs.2 An anonymous source reported to DHS possible signs of abuse on\\n\\nI.B.’s body, including bumps on her face, a nickel-sized bruise on her neck, a small red\\n\\nmark on her lower back, two small cuts on her stomach, and bruised knees. DHS\\n\\ncaseworker April Woodard responded to the report, arriving to take I.B. to the nurse’s\\n\\noffice.3 Allegedly acting on instructions from DHS supervisor Christina Newbill, Ms.\\n\\nWoodard removed I.B.’s clothing and visually inspected and photographed I.B.’s buttocks,\\n\\nstomach, and back using a county-issued cell phone.4\\n\\n The Does alleged that the undressing and photographing were “executed under an\\n\\nunwritten, but well-established county-wide policy or custom encouraging the practice,\\n\\noften without first obtaining parental consent or a court order.” Aplt. Br. at 5 (citing Aplt.\\n\\n\\n\\n\\n 2\\n Pacific Justice’s amicus brief explains that Head Start is “a federally funded\\npreschool in which children engage in a course of age-appropriate studies conducted by\\na teacher. Although not a K-12 public school, Head Start primarily functions as an\\neducational institution for very young children.” Pacific Justice Amicus Br. at 2\\n(footnote omitted). The “program meets on public school campuses.” Id.\\n\\n 3\\n This was the not DHS’s first investigation regarding I.B. The Does alleged\\n that, between 2012 and 2014, DHS investigated their home “around half a dozen\\n times, based on false reports that I.B. was being abused.” Am. Compl. ¶ 15. One\\n investigation was based on a report that I.B. had marks resembling a hand print on\\n her bottom and lower-back bruising. DHS visually examined I.B. with her clothing\\n removed. DHS closed the investigation, finding in January 2014 the report was\\n unfounded. Id. ¶¶ 24-32.\\n 4\\n According to Defendants, “the school’s health paraprofessional” assisted Ms.\\nWoodard. Aplee. Br. at 7.\\n 4\\n\\nApp., Vol. I at 21-28). They further alleged that Richard Bengtsson, then Executive\\n\\nDirector of the El Paso County DHS, issued the policy, and the director of Ms. Woodard’s\\n\\ndepartment, Shirley Rhodus, implemented it.\\n\\n The following day, Ms. Woodard visited Ms. Doe at home. DHS did not suspect\\n\\nher of abuse, and she cooperated with the investigation. Ms. Woodard did not inform\\n\\nMs. Doe that she had inspected and photographed I.B. in a state of partial undress. The\\n\\ncase was closed as unfounded.\\n\\n After DHS closed the case, I.B. told her mother about the incident, saying she\\n\\nhoped she would not see Ms. Woodard again because “I don’t like it when she takes all\\n\\nmy clothes off.” Aplt. App., Vol. I at 17. I.B. later said to Ms. Doe that Ms. Woodard\\n\\nhad taken photos of her against her will. Aplt. App., Vol. I at 18. When Ms. Doe\\n\\napproached Ms. Woodard about her daughter’s accusations, Ms. Woodard at first\\n\\ndenied them. Two months later, she reversed course and admitted that she did the\\n\\ninspection and took photographs. Ms. Woodard told Ms. Doe that a child abuse\\n\\naccusation and investigation takes priority over the mother’s parental rights.\\n\\n B. Procedural History\\n\\n The Does sued under 42 U.S.C. § 1983, alleging violation of I.B.’s Fourth\\n\\nAmendment rights and violations of I.B.’s and Ms. Doe’s Fourteenth Amendment\\n\\n\\n\\n\\n 5\\n\\nrights.5 The Fourth Amendment claims were based on both the visual inspection and\\n\\nthe photographs; the Fourteenth Amendment claims only on the inspection. In addition\\n\\nto Ms. Woodard, the Does named as defendants Ms. Woodard’s supervisors, Ms.\\n\\nNewbill and Ms. Rhodus; Mr. Bengtsson, Executive Director of El Paso County DHS;\\n\\nReggie Bicha, Executive Director of Colorado DHS; and the El Paso Board of County\\n\\nCommissioners (“BOCC”). The Does sought damages and prospective relief against a\\n\\n“statewide and local policy and custom” encouraging “strip searching children\\n\\nwhenever injuries are alleged.” Aplt. App., Vol. I at 40. The Defendants moved to\\n\\ndismiss based on qualified immunity and failure to state a claim.\\n\\n1. Dismissal of Fourth Amendment Claims\\n\\n A magistrate judge6 concluded Ms. Woodard and her supervisors were entitled\\n\\nto qualified immunity on the Fourth Amendment claim7 and dismissed the claim\\n\\nwithout prejudice. When the Does sought to file an amended complaint, the court\\n\\nrejected the request on futility grounds and dismissed the claim with prejudice.\\n\\n\\n\\n\\n 5\\n Because I.B. is a minor, Ms. Doe brought her claims for her. Although we\\nrefer to “the Does” when discussing the Fourth and Fourteenth Amendment claims, the\\nFourth Amendment claims are solely on behalf of I.B.\\n 6\\n The parties agreed to have all proceedings in the case decided by a magistrate\\njudge. See 28 U.S.C. § 636(c). We will refer to the magistrate judge’s court as the\\n“district court.”\\n 7\\n Doe et al. v. Woodard et al., No. 1:15-CV-01165-KLM (D. Colo. Sept. 30,\\n2016).\\n 6\\n\\n a. Ms. Woodard and Ms. Newbill\\n\\n The district court dismissed the Fourth Amendment claim against Ms. Woodard\\n\\nand Ms. Newbill because the law was not so “clearly established” as to “give\\n\\nDefendants fair warning that the taking photographs of portions of I.B.’s unclothed\\n\\nbody required a warrant.” Dist. Court Op. at 16.\\n\\n To the extent the Fourth Amendment claim was based on the Defendants’ failure\\n\\nto show that the “special needs” doctrine justified the search, the district court\\n\\nrecognized that a special needs search comports with the Fourth Amendment only if it\\n\\nis “justified at its inception” and “reasonably related in scope to the circumstances\\n\\nwhich justified interference in the first place.” Id. at 19 (quotations omitted). But, the\\n\\ndistrict court concluded, the Does’ complaint “lack[ed] allegations” the search was\\n\\nunjustified at its inception or was improper in scope. Id.8\\n\\n The district court dismissed the Does’ Fourth Amendment claim without\\n\\nprejudice.\\n\\n b. Ms. Rhodus and Mr. Bengtsson\\n\\n The district court dismissed the Fourth Amendment § 1983 supervisory liability\\n\\nclaim against Ms. Rhodus and Mr. Bengtsson. Because qualified immunity shielded\\n\\ntheir supervisees, Ms. Woodard and Ms. Newbill, it also shielded them. Id. at 22. The\\n\\n\\n 8\\n The district court also said Defendants’ conduct was objectively reasonable\\nbecause they complied with a Colorado statute authorizing photography in cases of\\nsuspected child abuse. Id. (citing Colo. Rev. Stat. § 19-3-306).\\n 7\\n\\ncourt also dismissed the claim for prospective relief against Ms. Rhodus and Mr.\\n\\nBengtsson, which demanded safeguards on storing photographs obtained in future\\n\\nsearches, because it was based only on a “mere potential violation.” Id. at 23-24.\\n\\n2. Dismissal of Fourteenth Amendment Claims\\n\\n a. Ms. Woodard and Ms. Newbill\\n\\n The district court dismissed, for failure to state a claim, the Does’ substantive\\n\\ndue process claims under the Fourteenth Amendment for violation of the parental right\\n\\nto direct medical care and of the right to familial association.\\n\\n i. Right to direct medical care\\n\\n The district court dismissed the parental rights claim, stating that (1) the visual\\n\\nexam of a child was not “essentially a medical procedure”; (2) the complaint did not\\n\\nallege that the exam “affected [I.B’s mother’s] right to direct [I.B.’s] medical care”;\\n\\nand (3) the complaint did not allege that the exam caused any “interference with\\n\\n[I.B.’s] medical treatment.” Id. at 31 (quotations omitted).\\n\\n ii. Right to familial association\\n\\n The district court dismissed the familial association claims, concluding the Does\\n\\ndid not sufficiently plead that (1) the Defendants intended to separate I.B. from her\\n\\nmother or that (2) the Defendants knew their conduct would adversely affect the\\n\\nfamilial relationship. Id.\\n\\n b. Ms. Rhodus, Mr. Bengtsson, and Mr. Bicha\\n\\n\\n 8\\n\\n The district court also dismissed the Fourteenth Amendment supervisory claims\\n\\nagainst Ms. Rhodus and Mr. Bengtsson and the official capacity claims against Mr.\\n\\nBengtsson and Mr. Bicha because the complaint failed to allege an underlying violation\\n\\nof the Fourteenth Amendment.9\\n\\n3. Denial of Leave to Amend and Dismissal with Prejudice\\n\\n When the Does attempted to amend their complaint, the district court denied the\\n\\nrequest, stating that the Does “have not addressed the Court’s determination that\\n\\nDefendants were entitled to qualified immunity because the law was not clearly\\n\\nestablished with respect to whether Defendants needed a warrant in order to search the\\n\\nminor Plaintiff. In the absence of any case clearly establishing Plaintiffs’ rights as\\n\\nasserted, the Court cannot find that Defendants knowingly violated the law, even\\n\\nassuming that they committed a constitutional violation.” Aplt. App., Vol. II at 72-73\\n\\n(citations and quotations omitted).10\\n\\n\\n\\n\\n 9\\n The Does do not appeal the dismissal of the Fourteenth Amendment official-\\ncapacity claims.\\n 10\\n The Does sued the BOCC for its role in the same alleged violations under the\\nFourth and Fourteenth Amendments. The district court dismissed these claims because\\nthe BOCC is a county rather than state entity and lacked final policymaking control.\\nThis ruling is not on appeal.\\n\\n 9\\n\\n The district court also dismissed the Fourth and Fourteenth amendment claims\\n\\nwith prejudice.11\\n\\n\\n\\n\\n 11\\n The claim for prospective relief against Mr. Bengtsson and Mr. Bicha in their\\nofficial capacities survived the motion to dismiss. Limited discovery was granted\\nregarding standing on the claim, but it was later dismissed by stipulation of the parties.\\nNo prospective claim against Ms. Rhodus and Mr. Bengtsson in their official capacity\\nis part of this appeal.\\n 10\\n\\n II. DISCUSSION\\n\\n Our discussion reviews (A) the district court’s qualified immunity dismissal of\\n\\nthe Does’ Fourth Amendment claims and (B) its dismissal of their Fourteenth\\n\\nAmendment claims for failure to state a claim. We affirm in both instances.\\n\\n A. Fourth Amendment Claims\\n\\n This section provides background on the standard of review; qualified immunity\\n\\nlaw; Fourth Amendment search requirements, with emphasis on the special needs\\n\\ndoctrine; and analysis of whether the Does have shown there was clearly established\\n\\nlaw at the time of the search to support their claim. We conclude they have not shown\\n\\nclearly established law that the special needs doctrine could not support the search in\\n\\nthis case. They therefore have not shown that a warrant clearly was required.12\\n\\n1. Standard of Review\\n\\n We review de novo the grant of a motion to dismiss under Rule 12(b)(6) due to\\n\\nqualified immunity. Estate of Lockett v. Fallin, 841 F.3d 1098, 1106 (10th Cir. 2016).\\n\\n\\n 12\\n This approach is similar to the one we followed in McInerney v. King, 791 F.3d\\n1224 (10th Cir. 2015). In that case, the plaintiff brought a § 1983 action alleging a Fourth\\nAmendment violation based on the defendant police officer’s warrantless search of her\\nhome. We reversed the district court’s grant of qualified immunity. As in our case, the\\nsearch was conducted without a warrant, and the defendant relied on an exception to the\\nwarrant requirement to contest the Fourth Amendment claim. After reviewing the existing\\ncase law, we concluded it was clearly established that the exigent circumstances exception\\ndid not apply and therefore the defendant was not entitled to qualified immunity. Id. at\\n1228. Here, after reviewing existing case law, the opinion concludes that the law was not\\nclearly established that the special needs exception did not apply, and therefore the\\ndefendants were entitled to qualified immunity.\\n 11\\n\\n“At [the motion to dismiss] stage, it is the defendant’s conduct as alleged in the\\n\\ncomplaint that is scrutinized for ‘objective legal reasonableness.’” Behrens v.\\n\\nPelletier, 516 U.S. 299, 309 (1996).\\n\\n2. Legal Background\\n\\n a. Qualified immunity\\n\\n Under 42 U.S.C. § 1983, a person acting under color of state law who “subjects,\\n\\nor causes to be subjected, any citizen of the United States . . . to the deprivation of any\\n\\nrights, privileges, or immunities secured by the Constitution and laws, shall be liable to\\n\\nthe party injured . . . .” “Individual defendants named in a § 1983 action may raise a\\n\\ndefense of qualified immunity, which shields public officials from damages actions\\n\\nunless their conduct was unreasonable in light of clearly established law.” Estate of\\n\\nBooker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014) (citation, ellipsis, and quotations\\n\\nomitted).\\n\\n “[Q]ualified immunity protects ‘all but the plainly incompetent or those who\\n\\nknowingly violate the law.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting\\n\\nMalley v. Briggs, 475 U.S. 335, 341 (1986)). A motion to dismiss based on qualified\\n\\nimmunity imposes the burden on the plaintiff to show “both that [1] a constitutional\\n\\nviolation occurred and [2] that the constitutional right was clearly established at the\\n\\ntime of the alleged violation.” Green v. Post, 574 F.3d 1294, 1300 (10th Cir. 2009)\\n\\n(quotations omitted). A court evaluating qualified immunity is free to “exercise [its]\\n\\n\\n 12\\n\\nsound discretion in deciding which of the two prongs of the qualified immunity\\n\\nanalysis should be addressed first in light of the circumstances in the particular case at\\n\\nhand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).\\n\\n A constitutional right is clearly established if it is “sufficiently clear that every\\n\\nreasonable official would have understood that what he is doing violates that right.”\\n\\nMullenix, 136 S. Ct. at 308 (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).\\n\\nThe plaintiff must show there is a “Supreme Court or Tenth Circuit decision on point,\\n\\nor the clearly established weight of authority from other courts must have found the\\n\\nlaw to be as the plaintiff maintains.” Klen v. City of Loveland, 661 F.3d 498, 511 (10th\\n\\nCir. 2011) (quotations omitted). Generally, “existing precedent must have placed the\\n\\nstatutory or constitutional question beyond debate” for a right to be clearly established.\\n\\nThe Estate of Lockett, 841 F.3d at 1107 (quoting Mullenix, 136 S. Ct. at 308).\\n\\n There “need not be a case precisely on point.” Redmond v. Crowther, 882 F.3d\\n\\n927, 935 (10th Cir. 2018). But “it is a ‘longstanding principle that clearly established\\n\\nlaw should not be defined at a high level of generality.’” Id. (quoting White v. Pauly,\\n\\n137 S. Ct. 548, 552 (2017) (per curiam)); see also District of Columbia v. Wesby, 138\\n\\nS. Ct. 577, 590 (2018) (“The clearly established standard . . . requires a high degree of\\n\\nspecificity.” (quotations omitted)). “[T]he salient question . . . is whether the state of\\n\\nthe law . . . gave [the defendants] fair warning that their alleged treatment of [the\\n\\nplaintiffs] was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).\\n\\n\\n 13\\n\\n “[G]eneral statements of the law are not inherently incapable of giving fair and\\n\\nclear warning to officers, but in the light of pre-existing law the unlawfulness must be\\n\\napparent.” White, 137 S. Ct. at 552 (citations and quotations omitted). “[T]here can be\\n\\nthe rare obvious case, where the unlawfulness of the officer’s conduct is sufficiently\\n\\nclear even though existing precedent does not address similar circumstances.” Wesby,\\n\\n138 S. Ct. at 590 (quotations omitted).\\n\\n For supervisory liability, “[p]ersonal participation is an essential allegation in a\\n\\n1983 claim.” Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). A\\n\\nsupervisor cannot be held vicariously liable for the constitutional violations of\\n\\nsubordinates. See Serna v. Colo. Dep’t of Corr., 455 F.3d 1146, 1151 (10th Cir. 2003)\\n\\n(“Supervisors are only liable under § 1983 for their own culpable involvement in the\\n\\nviolation of a person’s constitutional rights.”) “[D]irect participation,” however, “is\\n\\nnot necessary.” Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir. 1990) (quotations\\n\\nomitted). “The requisite causal connection is satisfied if the defendant set in motion a\\n\\nseries of events that the defendant knew or reasonably should have known would cause\\n\\nothers to deprive the plaintiff of her constitutional rights.” Id. (quotations omitted).\\n\\n“[T]he establishment or utilization of an unconstitutional policy or custom can serve as\\n\\nthe supervisor’s affirmative link to the constitutional violation . . . . Where an official\\n\\nwith policymaking authority creates, actively endorses, or implements a policy which\\n\\nis constitutionally infirm, that official may face personal liability for the violations\\n\\n\\n 14\\n\\nwhich result from the policy’s application.” Dodds v. Richardson, 614 F.3d 1185,\\n\\n1199 (10th Cir. 2010) (quotations and brackets omitted). Supervisors cannot be liable\\n\\nunder § 1983 where there is no underlying violation of a constitutional right by a\\n\\nsupervisee. See Martinez v. Beggs, 563 F.3d 1082, 1092 (10th Cir. 2009).\\n\\n b. Fourth Amendment search requirements\\n\\n i. The warrant requirement\\n\\n The Fourth Amendment protects people from unreasonable government searches\\n\\nof their “persons, houses, papers, and effects.” U.S. Const. Amend. IV. It “protects\\n\\nthe right of the people to be ‘secure in their persons’ from government intrusion\\n\\nwhether the threat to privacy arises from a policeman or a Head Start administrator.”\\n\\nDubbs v. Head Start, Inc., 336 F.3d 1194, 1205 (10th Cir. 2003). “There is no ‘social\\n\\nworker’ exception to the Fourth Amendment.” Id.\\n\\n As a general rule, a search requires a warrant based on probable cause. Illinois\\n\\nv. Gates, 462 U.S. 213, 239 (1983). “Searches conducted without a warrant are per se\\n\\nunreasonable under the Fourth Amendment—subject only to a few ‘specifically\\n\\nestablished and well-delineated exceptions.’” Roska ex rel. Roska v. Peterson, 328\\n\\nF.3d 1230, 1248 (10th Cir. 2003) (quoting Katz v. United States, 389 U.S. 347, 357\\n\\n\\n\\n\\n 15\\n\\n(1967)). These exceptions include (1) consent;13 (2) exigent circumstances;14 and (3) a\\n\\n“special need.” In this case, there was no warrant, consent, or exigent circumstance.\\n\\nThe qualified immunity question concerns, therefore, (1) whether a warrant was\\n\\nrequired for the search because the special needs exception did not apply, and (2) if it\\n\\ndid, whether the search nonetheless violated the special needs doctrine.\\n\\n ii. Special needs doctrine\\n\\n “‘Special needs’ is the label attached to certain cases where ‘special needs,\\n\\nbeyond the normal need for law enforcement, make the warrant and probable-cause\\n\\nrequirement impracticable.’” Dubbs, 336 F.3d at 1212 (quoting Bd. of Educ. of Indep.\\n\\nSch. Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822, 830 (2002)).\\n\\n There is no definitive list of “special needs.” The Supreme Court has found a\\n\\nspecial need in a principal’s in-school search of a student’s purse for drugs; a public\\n\\n\\n\\n\\n 13\\n “It is . . . well settled that one of the specifically established exceptions to the\\nrequirements of both a warrant and probable cause is a search that is conducted\\npursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).\\n 14\\n “The exigent circumstances exception allows a warrantless search when an\\nemergency leaves police insufficient time to seek a warrant. It permits, for instance,\\nthe warrantless entry of private property when there is a need to provide urgent aid to\\nthose inside, when police are in hot pursuit of a fleeing suspect, and when police fear\\nthe imminent destruction of evidence.” Birchfield v. North Dakota, 136 S. Ct. 2160,\\n2173 (2016) (citation omitted). “Warrants are generally required to search a person’s\\nhome or his person unless the exigencies of the situation make the needs of law\\nenforcement so compelling that the warrantless search is objectively reasonable under\\nthe Fourth Amendment.” Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (quotations\\nomitted) (brackets omitted).\\n 16\\n\\nemployer’s search of an employee’s desk; a probation officer’s search of a\\n\\nprobationer’s home; a Federal Railroad Administration policy requiring employees to\\n\\ntake blood and urine tests following a major rail accident; drug testing of United States\\n\\nCustoms employees applying for drug interdiction jobs; schools’ random drug testing\\n\\nof athletes; and drug testing of public school students partaking in extracurricular\\n\\nactivities. See Dubbs, 336 F.3d at 1213 (collecting cases). In Dubbs, we synthesized\\n\\nthe special needs doctrine as follows:\\n\\n (1) an exercise of governmental authority distinct from that\\n of mere law enforcement—such as the authority as\\n employer, the in loco parentis authority of school officials,\\n or the post-incarceration authority of probation officers;\\n (2) lack of individualized suspicion of wrongdoing, and\\n concomitant lack of individualized stigma based on such\\n suspicion; and (3) an interest in preventing future harm,\\n generally involving the health or safety of the person being\\n searched or of other persons directly touched by that\\n person’s conduct, rather than of deterrence or punishment\\n for past wrongdoing.\\n\\nId. at 1213-14.\\n\\n State actors can invoke the special needs doctrine only when the purpose of the\\n\\nsearch is sufficiently “divorced from the State’s general interest in law enforcement.”\\n\\nFerguson v. City of Charleston, 532 U.S. 67, 79 (2001) (drug tests used in a state\\n\\nobstetrics ward not justified under special needs because they were coordinated with\\n\\nthe police).\\n\\n\\n\\n\\n 17\\n\\n When it applies, the special needs doctrine employs a more relaxed test than the\\n\\none traditionally used under the Fourth Amendment to assess the reasonableness of a\\n\\nsearch. To evaluate special needs reasonableness, we have (1) required that (a) the\\n\\nsearch be “justified at its inception” and (b) reasonable in its “scope” given the\\n\\n“circumstances”;15 or we have (2) balanced government and private interests.16\\n\\n 1) Child abuse context: Supreme Court and Tenth Circuit\\n\\n The Supreme Court has not addressed the special needs doctrine in the context\\n\\nof social workers’ inspection of children upon suspicion of child abuse. It has rejected\\n\\nthe special needs doctrine to justify a search, but in a different child abuse context. In\\n\\nFerguson v. City of Charleston, 532 U.S. 67 (2001), the Court held that a hospital’s\\n\\ntesting of pregnant mothers in its maternity ward for cocaine and reporting results to\\n\\nauthorities under a theory that a positive result constituted “child abuse” did not qualify\\n\\nfor the special needs exception to the Fourth Amendment warrant requirement because\\n\\nof the program’s “pervasive involvement of law enforcement.” Id. at 70, 85.\\n\\n\\n\\n\\n 15\\n See, e.g., Edwards For and in Behalf of Edwards v. Rees, 883 F.2d 882, 884\\n(10th Cir. 1989) (quoting New Jersey v. T.L.O., 469 U.S. 325, 341 (1985)). T.L.O., in\\nturn, cites this test from Terry v. Ohio, 392 U.S. 1, 20 (1968).\\n 16\\n See, e.g., Dubbs: “[I]n special needs cases, the Court replaces the warrant and\\nprobable cause requirement with a balancing test that looks to the nature of the privacy\\ninterest, the character of the intrusion, and the nature and immediacy of the\\ngovernment’s interest.” 336 F.3d at 1213.\\n\\n 18\\n\\n The Tenth Circuit has not previously addressed whether the special needs\\n\\ndoctrine applies to a social worker’s search of a student at school to detect evidence of\\n\\nsuspected abuse. We applied it in a child abuse context when a student at a public\\n\\nschool needed to be interviewed. Doe v. Bagan, 41 F.3d 571, 574 n.3 (10th Cir. 1994).\\n\\nThat case concerned a seizure, however, not a search, because it involved the\\n\\nquestioning of a minor suspected of abusing another child, not an inspection of the\\n\\nallegedly abused child. See id. In another case, we held that special needs did not\\n\\npermit a social worker, who suspected abuse, to enter a home and remove a child.\\n\\nRoska, 328 F.3d at 1242. In Franz v. Lytle, 997 F.2d 784 (10th Cir. 1993), we held that\\n\\neven if a police officer is performing the functions of a social worker in examining a\\n\\nyoung child’s private areas upon suspicion of abuse, the police officer nevertheless\\n\\nmust abide by the Fourth Amendment’s warrant requirement.17\\n\\n In Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th Cir. 2003), a school invoked\\n\\nthe special needs doctrine when it subjected an entire class of children to intrusive\\n\\nphysical examinations (including genital examinations and blood tests) without\\n\\nparental notice or consent, stating this was “done in order to comply with federal\\n\\nregulations [and] is an effective means of identifying physical and developmental\\n\\n\\n\\n\\n 17\\n We decided Franz before the Supreme Court held in Ferguson that social\\nworkers are not categorically exempt from the warrant requirement when performing a\\nsearch. Ferguson, 532 U.S. at 76 & n.9.\\n\\n 19\\n\\nimpediments in children prior to them starting school, a goal of Head Start.” Id. at\\n\\n1214. We did not decide whether the doctrine applied, holding instead that even if it\\n\\ndid, the searches were unconstitutional under the balancing test. The extreme privacy\\n\\ndeprivations involved in the invasive testing outweighed the ostensible special need of\\n\\ndoing a health assessment. Id. at 1214-15.\\n\\n We therefore have not established whether the special needs doctrine permits a\\n\\nsocial worker to search a child, such as by removing clothing and/or taking\\n\\nphotographs, to investigate a report of suspected abuse.\\n\\n 2) Child abuse context: other circuits and special needs\\n\\n Other circuits have split on whether a social worker’s examination of a child\\n\\nupon suspicion of abuse requires a warrant or qualifies for the special needs doctrine.\\n\\n The Seventh Circuit held that a social worker’s visual inspection of a child upon\\n\\nsuspicion of child abuse falls under the special needs doctrine and thus can proceed\\n\\nwithout a warrant, as long as the search passes the special needs balancing test and is\\n\\nfundamentally reasonable. Darryl H. v. Coler, 801 F.2d 893 (7th Cir. 1986).18 In\\n\\nWildauer v. Frederick County, 993 F.2d 369 (4th Cir. 1993), the Fourth Circuit held\\n\\nsocial workers’ warrantless examinations of potentially abused children in their foster\\n\\n\\n\\n\\n 18\\n The Seventh Circuit later limited this holding to searches on public as opposed\\nto private property. Michael C. v. Gresbach, 526 F.3d 1008, 1016 (7th Cir. 2008).\\n 20\\n\\nhomes should be evaluated under a special needs balancing and general\\n\\n“reasonableness” analysis, as opposed to probable cause.\\n\\n Four other circuits, however, have held that social worker examinations of\\n\\nchildren based on abuse suspicions are not candidates for special needs analysis. The\\n\\nThird Circuit, in Good v. Dauphin Cty. Soc. Servs. for Children & Youth, 891 F.2d\\n\\n1087 (3d Cir. 1989), held that social workers’ search of a child in his home required\\n\\neither a search warrant, consent, or exigent circumstances. The Ninth Circuit, in\\n\\nCalabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999), held that a social worker performing\\n\\na search on a child to investigate possible abuse must have a warrant, consent, or\\n\\nexigent circumstances, and may not rely on the special needs doctrine (especially in\\n\\nthis case where a police officer was also present with the social worker). The Second\\n\\nCircuit, in Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999), held that judicial\\n\\nauthorization was required for social workers to examine a student upon suspicion of\\n\\nabuse. Finally, the Fifth Circuit, in Roe v. Texas Dep’t of Protective & Regulatory\\n\\nServs., 299 F.3d 395 (5th Cir. 2002), held that social workers performing a visual body\\n\\ncavity search for suspected abuse needed a court order based on probable cause or\\n\\nexigent circumstances, and that they could not rely on the special needs doctrine. Roe\\n\\nemphasized, under Ferguson, the overlap of social workers with law enforcement\\n\\ninvestigating abuse militates against the applicability of the special needs doctrine. Id.\\n\\nat 406.\\n\\n\\n 21\\n\\n3. Analysis\\n\\n We limit our qualified immunity analysis, as the district court did, to whether\\n\\nthe Does can satisfy the second prong of qualified immunity—that is, whether they can\\n\\nshow that any Fourth Amendment violation was based on clearly established law.\\n\\n Defendants do not contest that Ms. Woodard conducted a search for Fourth\\n\\nAmendment purposes.19 For the search to have been valid under the Fourth Amendment,\\n\\nMs. Woodard needed a warrant or one of the exceptions to the warrant requirement to\\n\\napply—consent, exigent circumstances, or the special needs doctrine. Because (1) Ms.\\n\\nWoodard did not obtain a warrant, (2) Ms. Doe did not consent to the search, and (3) the\\n\\ncircumstances were not exigent, the search would have been valid without a warrant only if\\n\\nthe special needs doctrine applied.\\n\\n The Does have not cited a Supreme Court or Tenth Circuit decision specifically\\n\\nholding that a social worker must obtain a warrant to search a child at school for evidence\\n\\nof reported abuse. Instead, they argue that (a) only a warrant could have justified the\\n\\nsearch of I.B. because the special needs doctrine did not apply, or (b) even if the special\\n\\nneeds doctrine did apply, Defendants’ conduct violated the Fourth Amendment\\n\\n\\n\\n\\n 19\\n Although the Defendants do not expressly and directly concede that I.B. was\\nsubject to a search, they devote their brief to evaluating a “search” of this type. See,\\ne.g.¸Aplee Br. at 14 (“This Court should consider a social worker’s visual inspection\\nand photographing of a child, under the circumstances alleged, as an administrative\\nsearch subject to the reasonableness balancing test . . . .”).\\n\\n 22\\n\\nreasonableness standards for a special needs search. The Does have not met their burden of\\n\\nshowing clearly established law on either ground.\\n\\n a. No showing of clearly established Fourth Amendment law on whether social\\n worker searches examining for abuse qualified for the special needs\\n exception\\n\\n In this section, we examine the Does’ attempts to show that Ms. Woodard’s\\n\\nsearch violated clearly established Fourth Amendment law in December 2014 because\\n\\nshe lacked a warrant and the special needs exception did not apply. They have failed to\\n\\ndo so. Based on our previous review of the case law and discussion below, we\\n\\nconclude that neither the Supreme Court nor this court had previously decided that the\\n\\nspecial needs exception does not apply to warrantless social worker searches for\\n\\nsuspected child abuse. Nor was the weight of authority from other circuits clearly\\n\\nestablished. We therefore hold that, when the search occurred in this case, there was\\n\\nno clearly established law that a warrant was required.\\n\\n i. Supreme Court and Tenth Circuit law\\n\\n The Does argue that Supreme Court and Tenth Circuit precedent on special\\n\\nneeds existing when Ms. Woodard searched I.B. may be read to find a Fourth\\n\\nAmendment violation under clearly-established law. They cite (1) Franz, which held\\n\\nthat a police officer could not search a young child without a warrant or consent upon\\n\\nsuspicion of abuse; (2) Dubbs, which held that examinations of children at school\\n\\nneeded a warrant, consent, or exigent circumstances, and that there is no general social\\n\\n\\n 23\\n\\nworker exception to the Fourth Amendment; (3) Roska, for the proposition that the\\n\\nspecial needs doctrine can be used only when obtaining a warrant is impracticable; and\\n\\n(4) Ferguson, for the principle that “[e]xcessive entanglement with law enforcement\\n\\nrenders the special need exception inapplicable,” Aplt. Br. at 35.20\\n\\n The Does contend that these cases put the DHS caseworkers and their\\n\\nsupervisors on notice that Ms. Woodard could not undress and photograph I.B. without\\n\\na warrant, consent, or exigent circumstances. We disagree that these cases would have\\n\\nput a reasonable social worker on notice that her conduct violated the Fourth\\n\\nAmendment.\\n\\n First, Franz involved a police officer who searched a young child upon\\n\\nsuspicion of abuse, and held that the officer needed a warrant, consent, or exigent\\n\\ncircumstances to do so. In other words, the special needs doctrine did not apply. But a\\n\\npolice search is not a social worker search, and Franz does not address the latter.\\n\\n Second, Dubbs does not clearly establish Fourth Amendment law for a social\\n\\nworker’s search for child abuse in this case. In Dubbs, the school indiscriminately\\n\\ntested the entire class and performed much more invasive examinations. The defendant\\n\\nschool officials argued that the special need was for generalized health assessment to\\n\\n\\n\\n\\n 20\\n In their reply brief, the Does drop their reference to Ferguson in their clearly-\\nestablished argument and rely only on Franz, Dubbs, and Roska. See Aplt. Reply Br.\\nat 9.\\n\\n 24\\n\\ncomply with federal regulations, not to search for child abuse. Accordingly, Dubbs did\\n\\nnot address the issue presented here—whether Ms. Woodard’s search of I.B. for child\\n\\nabuse satisfied the Fourth Amendment as a special needs search.\\n\\n Third, Roska also does not provide clearly established law. In Roska, we said\\n\\nthat a special need must “make the warrant and probable-cause requirement\\n\\nimpracticable.” 328 F.3d at 1241 (quotations omitted). It held that, barring exigent\\n\\ncircumstances, no special need “renders the warrant requirement impracticable when\\n\\nsocial workers enter a home to remove a child.” Id. at 1242. Roska does not bear upon\\n\\nsocial workers searching and photographing a child at school for suspected child abuse.\\n\\n Finally, in Ferguson, the Supreme Court held that hospital workers’ reporting of\\n\\ndrug tests taken in a maternity ward to police could not qualify for the special needs\\n\\nexception because their conduct was too intertwined with law enforcement. Ferguson\\n\\nsays nothing about social workers searching and photographing a child at school\\n\\nbecause of suspected child abuse or whether such conduct is unacceptably entangled\\n\\nwith law enforcement to qualify for special needs analysis. Nor have we, in contrast to\\n\\nthe Fifth Circuit in Roe, ever held that a social worker search for suspected abuse\\n\\ncontext was too closely tied to law enforcement to qualify for the special needs\\n\\ndoctrine.\\n\\n Taken together, these four cases do not constitute clearly established law that the\\n\\nDoes suffered a Fourth Amendment violation because no warrant was obtained. They\\n\\n\\n 25\\n\\nare not factually similar enough to apply to the Does’ claim. See White, 137 S. Ct. at\\n\\n552 (“[I]t is again necessary to reiterate the longstanding principle that “clearly\\n\\nestablished law should not be defined at a high level of generality . . . . [C]learly\\n\\nestablished law must be particularized to the facts of the case.”) (quotations and\\n\\ncitations omitted).\\n\\n ii. Other circuits\\n\\n Four circuits have rejected the special needs doctrine as an exception to the\\n\\n warrant requirement and two have approved it for searches like the one here. This\\n\\n does not amount to a “clearly established weight of authority from other courts,”\\n\\n Estate of Lockett, 841 F.3d at 1112 (quotations omitted), such that this “statutory or\\n\\n constitutional question [is] beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741\\n\\n (2011). Also, the circuits rejecting the special needs doctrine often did so based on\\n\\n facts distinguishable from this case—for instance, the search occurred at the child’s\\n\\n home, see, e.g., Good, 891 F.2d at 1092; Roe, 299 F.3d at 411-12, or involved taking\\n\\n the child out of school to a hospital, see Tenenbaum, 193 F.3d at 602.\\n\\n b. No showing of clearly established law on minimal Fourth Amendment\\n reasonableness standards\\n\\n Despite the lack of law clearly showing the special needs doctrine did not apply\\n\\n to the search here, the Does could still attempt to show that Ms. Woodard’s search\\n\\n failed to meet clearly established minimal Fourth Amendment reasonableness\\n\\n standards applicable to special needs searches.\\n 26\\n\\n When the Supreme Court first described the “special needs” exception in New\\n\\n Jersey v. T.L.O., 469 U.S. 325 (1985), it said a special needs search must satisfy\\n\\n minimum standards drawn from Terry v. Ohio, 392 U.S. 1 (1968):\\n\\n the legality of a search of a student should depend simply\\n on the reasonableness, under all the circumstances, of the\\n search. Determining the reasonableness of any search\\n involves a twofold inquiry: first, one must consider\\n “whether the . . . action was justified at its inception”;\\n second, one must determine whether the search as actually\\n conducted “was reasonably related in scope to the\\n circumstances which justified the interference in the first\\n place.”\\n\\nT.L.O., 469 U.S. at 341 (alteration in original) (citation omitted) (quoting Terry, 392\\n\\nU.S. at 20). As noted above, we also have measured reasonableness by balancing\\n\\ngovernment and private interests. See Dubbs, 336 F.3d at 1214.21\\n\\n i. Appellants’ failure to show clearly established law\\n\\n\\n\\n 21\\n Although the Terry reasonableness determination and the interest-balancing\\napproach are not identical, courts have recognized overlap in these tests. See, e.g.,\\nJones v. Hunt, 410 F.3d 1221, 1228-29 (10th Cir. 2005) (assessing reasonableness\\nunder Terry and quoting Wyoming v. Houghton, 526 U.S. 295, 299–300 (1999), for the\\nproposition that courts may “evaluate the search or seizure under traditional standards\\nof reasonableness by assessing, on the one hand, the degree to which it intrudes upon\\nan individual’s privacy and, on the other, the degree to which it is needed for the\\npromotion of legitimate governmental interests.”). See also Darryl H., 801 F.2d\\n902-03 (adopting approach that blends Terry analysis with interest-balancing test:\\n“The test of reasonableness under the Fourth Amendment is not capable of precise\\ndefinition or mechanical application. In each case it requires a balancing of the need\\nfor the particular search against the invasion of personal rights that the search entails.\\nCourts must consider the scope of the particular intrusion, the manner in which it is\\nconducted, the justification for initiating it, and the place in which it is conducted.”)\\n(quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)).\\n 27\\n\\n The Appellants offer almost no analysis to support their contention that the\\n\\nsearch violated clearly established minimal Fourth Amendment standards. Their\\n\\nopening brief devotes less than two pages to this issue. Although it cites several cases,\\n\\nincluding Dubbs, it does not provide any case analysis or otherwise begin to show how\\n\\nAppellants can meet the clearly established law burden to overcome qualified\\n\\nimmunity. Aplt. Br. at 36-37. Their Reply Brief fares no better. It mixes arguments\\n\\nand case cites about warrant requirements and the special needs exception with\\n\\narguments about reasonable searches. Aplt. Reply at 8-9. Other than parenthetical\\n\\ncase summaries, however, the Reply lacks case analysis or explanation as to why these\\n\\ncases clearly establish that Ms. Woodard’s search violated minimal Fourth Amendment\\n\\nprotections. The Reply complains that the Appellees have failed to provide case law to\\n\\nsupport the search and then states it is “not impermissibly shift[ing] the burden” to the\\n\\nAppellees. Id. at 10. But that is exactly what their argument would do. The\\n\\nAppellants’ failure to meet their burden should resolve the issue. The dissent attempts\\n\\nto do their work for them, but it does not show the law was clearly established, either.\\n\\n\\n\\n\\n 28\\n\\n ii. The dissent\\n\\n We have shown that in December 2014 the law did not clearly establish that a\\n\\nwarrant was required to justify Ms. Woodard’s search. This is so because the law did not\\n\\nclearly establish that Ms. Woodard could not rely on the special needs exception to justify\\n\\nthe search. See McInerney, 791 F.3d at 1237 (performing clearly established analysis by\\n\\nexamining whether it was clearly established that an exception did not apply to the Fourth\\n\\nAmendment’s warrant requirement).\\n\\n Despite appearing to agree with the foregoing, the dissent contends the search\\n\\nviolated clearly established Fourth Amendment requirements even assuming the special\\n\\nneeds doctrine applied. We disagree for two related reasons—(1) the cases it relies on are\\n\\nfactually distinguishable from this case, and (2) Supreme Court precedent calls for factually\\n\\nsimilar cases to constitute clearly established law. We respond to the dissent to address\\n\\nwhether it was clearly established that the special needs doctrine’s reasonableness\\n\\nstandards were not met in this case.\\n\\n First, the Does must “identify a case where an officer acting under similar\\n\\ncircumstances . . . was held to have violated the Fourth Amendment.” White, 137 S. Ct. at\\n\\n552. The dissent relies on two cases that are materially different from this case. In Dubbs,\\n\\nthe purpose of the search was to identify physical and developmental impediments in all\\n\\n\\n\\n\\n 29\\n\\nchildren to comply with federal Head Start program requirements.22 The state actors did\\n\\nnot attempt to justify the search in Dubbs based on the special need of detecting child\\n\\nabuse—just the opposite: “The nurses who administered the examinations, Strayhorn and\\n\\nBaker, testified that the exams were in conformity with standards for well-child\\n\\nexaminations and were not performed for the purpose of detecting child abuse.” 336 F.3d\\n\\nat 1200. In Safford, the purpose of the search was to prevent a student from distributing\\n\\nmedications to other students. 557 U.S. at 368. The purpose of Ms. Woodard’s search was\\n\\nto check for reported child abuse. Although, as the dissent notes, all three searches served\\n\\n“the state’s interest in child welfare,” Dissent Op. at 6, the purpose of Ms. Woodard’s\\n\\nsearch was different in kind from the others—to protect a child from reported abuse.\\n\\n In Dubbs, the nature of the search was an intrusive examination of the genitals of all\\n\\nchildren in the class, “separated only by partitions, so that it was possible for other children\\n\\nto see or hear portions of the examinations performed on their classmates.” Dubbs, 336\\n\\nF.3d at 1199. “The girls were asked to lay spread-legged on a table where the nurses\\n\\ninspected the girls’ labia; in some cases the nurses would ‘palpate,’ or touch, the genital\\n\\narea when a visual inspection was not adequate. Similarly, the nurses would palpate the\\n\\n\\n 22\\n The dissent, quoting Dubbs, states that “‘[t]he focus of the [Fourth]\\nAmendment is . . . on the security of the person, not the identity of the searcher or the\\npurpose of the search.’” Dissent Op. at 7 (quoting Dubbs, 336 F.3d at 1206). But this\\nquotation from Dubbs addressed whether the physical examinations in that case were\\n“searches” under the Fourth Amendment in the first place, not whether a given search\\nwas reasonable under the Fourth Amendment.\\n\\n 30\\n\\nboys’ genitals to test for the presence of testes.” Id. at 1200. Accordingly, not only was the\\n\\nstate justification weaker in Dubbs than in this case, the search was far more invasive, far\\n\\nless private, and applied indiscriminately to the entire class. Dubbs held the search\\n\\nunconstitutional under “the ‘special needs’ balancing test,” id. at 1214, but the factors to\\n\\nbalance in this case are plainly different.\\n\\n In Safford, school officers searched a student suspected of distributing medications\\n\\nto other students. 557 U.S. at 368. The search, which involved removal of the student’s\\n\\nclothing and pulling aside her undergarments to expose private areas, id. at 369, was\\n\\ncomparable to this case, but the circumstances underlying the search were different. The\\n\\nstudent searched in Safford was suspected of harming others through drug distribution. Id.\\n\\nat 377. The child in this case was suspected of suffering abuse from a third party. The\\n\\nSafford Court asked whether the search was “‘reasonably related in scope to the\\n\\ncircumstances which justified the interference,’” id. at 375 (quoting T.L.O., 469 U.S. at\\n\\n341), and held that it was not, given that the school lacked facts that the alleged\\n\\nmedications were dangerous or that the student hid them “in her underwear.” Id. at 376.\\n\\nNeither Safford or Dubbs served to clearly establish that Ms. Woodard’s search of I.B. was\\n\\nnot reasonably related in scope to the circumstances—suspected child abuse. The dissent\\n\\ncorrectly states that the searches in all three cases involved the children’s “intimate areas,”\\n\\nbut the purpose and circumstances of the search for suspected child abuse in this case\\n\\n\\n\\n\\n 31\\n\\ndiffered too much for Dubbs and Safford to have guided Ms. Woodard with clearly\\n\\nestablished law.\\n\\n Unlike the dissent, therefore, we do not see how a reasonable social worker in Ms.\\n\\nWoodard’s position would, based on these cases, know that her search of I.B. violated the\\n\\nrequirements for the special needs exception or the basic protections of the Fourth\\n\\nAmendment. “The precedent must be clear enough that every reasonable official would\\n\\ninterpret it to establish the particular rule the plaintiff seeks to apply.” Wesby, 138 S. Ct. at\\n\\n590; see also Mullenix, 136 S. Ct. at 308 (“A clearly established right is one that is\\n\\nsufficiently clear that every reasonable official would have understood that what he is\\n\\ndoing violates that right.”) (quotations omitted). As we have shown, the facts in this case\\n\\ndiffer markedly from the facts in the cases the dissent attempts to use for clearly established\\n\\nlaw.\\n\\n Second, the dissent’s reliance on these cases runs counter to the Supreme Court’s\\n\\nrepeated instruction that “clearly established law should not be defined at a high level of\\n\\ngenerality” but “must be particularized to the facts of the case.” White, 137 S. Ct. at 552\\n\\n(quotations omitted). The Court has stressed that the rule’s high “degree of specificity” is\\n\\n“especially important in the Fourth Amendment context.” Mullenix, 136 S. Ct. at 309. The\\n\\ndissent contends that the clearly established “particular rule” in December 2014, Dissent\\n\\nOp. at 6 (quoting Wesby, 138 S. Ct. at 590), was that a search “needed to be ‘justified at its\\n\\ninception and reasonably related in scope to the circumstances that justified the interference\\n\\n\\n 32\\n\\nin the first place,’” id. (quoting Aplt. Br. at 36). But this minimal Fourth Amendment\\n\\nstandard applies to all searches. It is not particularized to the facts of this case. The dissent\\n\\ntherefore attempts “to define clearly established law at a high degree of generality”\\n\\ncontrary to the Supreme Court’s instructions. Kisela v. Hughes, 138 S. Ct. 1148, 1152\\n\\n(2018) (quotations omitted).23\\n\\n Even if Dubbs and Safford offer plausible authority to support a special needs\\n\\nFourth Amendment violation here, whether they supply clearly established law is at most\\n\\ndebatable, and to be clearly established, “‘existing precedent must have placed the statutory\\n\\nor constitutional question beyond debate.’” White, 137 S. Ct. at 551 (quoting Mullenix,\\n\\n136 S. Ct. at 308). “It is not enough that the rule is suggested by then-existing precedent.”\\n\\nWesby, 138 S. Ct. at 590. Qualified immunity lies where “none of the cases [the parties\\n\\n\\n\\n\\n 23\\n The Supreme Court has repeatedly emphasized for more than 35 years that\\ngeneralized propositions of law are insufficient for clearly established law purposes.\\nSee Anderson v. Creighton, 483 U.S. 635, 640 (1987) (Court of Appeals “misapplied\\n[qualified immunity] principles” when its “discussion of qualified immunity consisted of\\nlittle more than an assertion that a general right Anderson was alleged to have violated—\\nthe right to be free from warrantless searches of one’s home unless the searching officers\\nhave probable cause and there are exigent circumstances—was clearly established.”);\\nBrosseau v. Haugen, 543 U.S. 194, 198-99 (2004) (per curiam) (Court of Appeals was\\nmistaken in using “the general proposition that use of force is contrary to the Fourth\\nAmendment if it is excessive under objective standards of reasonableness” for clearly\\nestablished purposes because the proposition is “cast a high level of generality” (quotations\\nomitted)).\\n\\n 33\\n\\nand the dissent rely on] squarely governs the case here.” Mullenix, 136 S. Ct. at 309\\n\\n(brackets and quotations omitted).24\\n\\n To the extent the Does attempt to argue that this is the rare alleged violation of\\n\\nminimal Fourth Amendment standards that is so “obvious” that a factually similar case\\n\\nis unnecessary for the clearly established law standard,25 see Aplt. Reply Br. at 6\\n\\n(citing Hope, 536 U.S. at 741), this argument fails. “[T]his is not an obvious case\\n\\nwhere a body of relevant case law is not needed.” Wesby, 138 S. Ct. at 591 (quotations\\n\\nomitted).\\n\\n\\n\\n\\n 24\\n The dissent also contends that Safford clearly establishes that “the\\ncategorically extreme intrusiveness” of a body search “requires some justification in\\nsuspected facts, general background possibilities fall short.” Dissent Op. at 7 (quoting\\nSafford, 575 U.S. at 376). But the Does and the dissent do not show that under the\\ncircumstances in this case, a reasonable social worker in Ms. Woodard’s shoes would\\nhave known her conduct fell short. As alleged in the First Amended Complaint, the\\nreport that I.B. was being abused contained specifics—“little bumps on I.B.’s face, a bruise\\nabout the size of a nickel on her neck, a small red mark on her lower back, two small cuts\\non her stomach, and bruised knees.” Aplt. App., Vol I at 15 ¶ 36. Combined with a report\\nof child abuse, a reasonable social worker could understand these to be “suspected facts,”\\nnot “general background possibilities.” To the extent Appellants pled, as the dissent\\nsuggests, that “Ms. Woodard was never aware of facts that could have justified such an\\nintrusive search of a four-year-old girl,” Dissent Op. at 9, such an allegation is both\\nconclusory and contradicted by other allegations in the First Amended Complaint.\\n 25\\n See, e.g., McCoy v. Meyers, 887 F.3d 1034, 1053 (10th Cir. 2018) (“Even\\nassuming that our previous cases were not sufficiently particularized to satisfy the\\nordinary clearly established law standard, ours is ‘the rare obvious case, where the\\nunlawfulness of the [state actor’s] conduct is sufficiently clear even though existing\\nprecedent does not address similar circumstances.’” (quoting Wesby, 138 S. Ct. at 590);\\nsee also White, 137 S. Ct. at 552; Brosseau, 543 U.S. at 199.\\n\\n 34\\n\\n * * * *\\n\\n In summary, the Does have not shown that Ms. Woodard’s search violated clearly\\n\\nestablished Fourth Amendment law. We affirm the district court’s conclusion that the\\n\\nDefendants, including supervisors, were entitled to qualified immunity and that the Fourth\\n\\nAmendment claims should be dismissed. 26\\n\\n B. Fourteenth Amendment Claims\\n\\n This section addresses the two substantive due process claims for violation of\\n\\nparental rights and interference with familial association. We describe our standard of\\n\\nreview and provide legal background on the facts required to allege these types of\\n\\nclaims and how those facts must “shock the conscience.” We then examine whether\\n\\nthe Does’ complaint states a plausible claim under these standards and, like the district\\n\\ncourt, find it lacking.\\n\\n1. Standard of Review\\n\\n We review de novo a district court’s Rule 12(b)(6) dismissal of a complaint for\\n\\nfailure to state a claim. Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir.\\n\\n\\n\\n\\n 26\\n In a different circuit with more developed law, the analysis of the “clearly\\nestablished” prong of qualified immunity might have been different. As noted above,\\nwe do not address the first step of qualified immunity analysis—whether the\\nDefendants violated the Fourth Amendment.\\n We note that El Paso County DHS later instituted a policy under which social\\nworkers must ask parental permission or obtain a court order before searching and\\nphotographing children for suspected abuse. Aplt. App., Vol. II at 7.\\n\\n 35\\n\\n2002). To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must plead\\n\\nsufficient factual allegations “to state a claim to relief that is plausible on its face.”\\n\\nBell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible\\n\\n“when the plaintiff pleads factual content that allows the court to draw the reasonable\\n\\ninference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,\\n\\n556 U.S. 662, 678 (2009). Dismissal under Rule 12(b)(6) is appropriate if the\\n\\ncomplaint alone is legally insufficient to state a claim. See Peterson v. Grisham, 594\\n\\nF.3d 723, 727 (10th Cir. 2010).\\n\\n Under our de novo review, “[a]ll well-pleaded facts, as distinguished from\\n\\nconclusory allegations, must be taken as true,” and we must liberally construe the\\n\\npleadings and make all reasonable inferences in favor of the non-moving party. Ruiz v.\\n\\nMcDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002) (quotations omitted).\\n\\n2. Legal Background\\n\\n The following describes the parental right to direct medical care and the right of\\n\\nfamilial association. To state a claim for either, the plaintiff must show that the alleged\\n\\nconduct “shocks the conscience.”\\n\\n a. Substantive due process claims—“shocks the conscience”\\n\\n In Halley v. Huckaby, 902 F.3d 1136 (10th Cir. 2018), we recently recounted\\n\\nthat the Supreme Court recognizes two types of substantive due process claims: (1)\\n\\nclaims that the government has infringed a “fundamental” right, see, e.g., Washington\\n\\n\\n 36\\n\\nv. Glucksberg, 521 U.S. 702, 721-22 (1997) (assessing asserted right to assisted\\n\\nsuicide); and (2) claims that government action deprived a person of life, liberty, or\\n\\nproperty in a manner so arbitrary it shocks the judicial conscience, see, e.g., City of\\n\\nSacramento v. Lewis, 523 U.S. 833, 846 (1998) (examining a high-speed police chase).\\n\\nHalley, 902 F.3d at 1153. “[W]e apply the fundamental-rights approach when the\\n\\nplaintiff challenges legislative action, and the shocks-the-conscience approach when\\n\\nthe plaintiff seeks relief for tortious executive action.” Id. The Does’ substantive due\\n\\nprocess claims—violation of the parental right to direct medical care and to familial\\n\\nassociation—challenge executive action, id. at 1154, and therefore are “shocks the\\n\\nconscience” claims.\\n\\n Executive action that shocks the conscience requires much more than\\n\\nnegligence. Moore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir. 2006). Even the actions\\n\\nof a reckless official or one bent on injuring a person do not necessarily shock the\\n\\nconscience. Id. “Conduct that shocks the judicial conscience” is “deliberate\\n\\ngovernment action that is arbitrary and unrestrained by the established principles of\\n\\nprivate right and distributive justice.” Hernandez v. Ridley, 734 F.3d 1254, 1261 (10th\\n\\nCir. 2013) (quotations omitted). “To show a defendant’s conduct is conscience\\n\\nshocking, a plaintiff must prove a government actor arbitrarily abused his authority or\\n\\nemployed it as an instrument of oppression.” Id. (brackets omitted) (quotations\\n\\nomitted). “The behavior complained of must be egregious and outrageous.” Id.; see\\n\\n\\n 37\\n\\nBreithaupt v. Abram, 352 U.S. 432, 435 (1957) (“We set aside the conviction because\\n\\nsuch conduct ‘shocked the conscience’ and was so ‘brutal’ and ‘offensive’ that it did\\n\\nnot comport with traditional ideas of fair play and decency.”) The Supreme Court\\n\\nfound conscience-shocking behavior in a case involving a sheriff’s application of\\n\\nstomach pumping to force vomiting, Rochin v. California, 342 U.S. 165, 172 (1952).\\n\\nThis Circuit recently found a social worker’s various actions that led to physical and\\n\\nsexual abuse of a minor shocked the conscience. T.D. v. Patton, 868 F.3d 1209, 1213\\n\\n(10th Cir. 2017).\\n\\n b. Parental right to direct child’s medical care\\n\\n The Fourteenth Amendment protects the right of parents to make decisions\\n\\n“concerning the care, custody, and control of their children.” Troxel v. Granville, 530\\n\\nU.S. 57, 66 (2000). This right provides “some level of protection for parents’ decisions\\n\\nregarding their children’s medical care.” PJ ex rel Jensen v. Wagner, 603 F.3d 1182,\\n\\n1197 (10th Cir. 2010). The right to direct a child’s medical care is not absolute.\\n\\n“[W]hen a child’s life or health is endangered by her parents’ decisions, in some\\n\\ncircumstances a state may intervene without violating the parents’ constitutional\\n\\nrights.” Id. at 1198. As noted above, a violation of this right must be conscience\\n\\nshocking.\\n\\n\\n\\n\\n 38\\n\\n c. Right of familial association\\n\\n The government’s “forced separation of parent from child, even for a short time,\\n\\nrepresents a serious impingement” on a parent’s substantive due process right to\\n\\nfamilial association. Jensen, 603 F.3d at 1199 (quotations omitted). A familial\\n\\nassociation claim must be based on allegations of abusive government authority. See\\n\\nGriffin v. Strong, 983 F.2d 1544, 1547 (10th Cir. 1993); see also Jensen, 603 F.3d at\\n\\n1198-99; J.B. v. Washington County, 127 F.3d 919, 927 (10th Cir. 1997). A parent\\n\\nmust allege “intent to interfere” with this right—that is, the state actor must have\\n\\ndirected conduct at the familial relationship “with knowledge that the statements or\\n\\nconduct will adversely affect that relationship.” Lowery v. City of Riley, 522 F.3d\\n\\n1086, 1092 (10th Cir. 2008). Again, the right is not absolute, but must be weighed\\n\\nagainst the state’s interest in protecting a child’s health and safety. See Youngberg v.\\n\\nRomeo, 457 U.S. 307, 320-21 (1982); see also Jensen, 603 F.3d at 1199; Lowery, 522\\n\\nF.3d at 1092. In conducting this balancing, courts consider the severity of the\\n\\ninfringement on the protected relationship, the need for defendants’ conduct, and\\n\\npossible alternative courses of action. See Griffin, 983 F.2d at 1548.27\\n\\n\\n 27\\n In Halley, we explained that, the two-part test “simply describes the kind of\\nbehavior we find to shock the conscience in this context.” 902 F.3d at 1154. “Namely,\\nit shocks the conscience when: (1) the officials intended to deprive the plaintiff of a\\nprotected relationship with a family member, and (2) the officials’ intrusion into the\\nrelationship was not warranted by state interests in the health and safety of the family\\nmember. Together, the facts alleged by the plaintiff on these points must meet the\\nshocks-the-conscience standard.” Id. (footnote and citation omitted).\\n 39\\n\\n To state a claim, Ms. Doe must have alleged that (1) the Defendants intended to\\n\\ndeprive her of her protected relationship with her daughter, see Estate of B.I.C. v.\\n\\nGillen, 710 F.3d 1168, 1175 (10th Cir. 2013); and that (2) the Defendants either unduly\\n\\nburdened Ms. Doe’s protected relationship, see Jensen, 603 F.3d at 1199, or effected\\n\\nan “unwarranted intrusion” into that relationship, Trujillo v. Bd. of Cty. Comm’rs, 768\\n\\nF.2d 1186, 1190 (10th Cir. 1985).\\n\\n3. Analysis\\n\\n a. Right to direct medical care\\n\\n Ms. Doe’s allegations on the right to control medical treatment do not “shock the\\n\\nconscience.” To be conscience-shocking, Ms. Woodard’s (or her supervisors’)\\n\\nbehavior had to be so “arbitrary” to be “as an instrument of oppression,” “egregious,”\\n\\n“outrageous,” and “so brutal and offensive” that it runs afoul of “traditional ideas of\\n\\nfair play and decency.” Hernandez, 734 F.3d at 1261; Breithaupt, 352 U.S. at 435.\\n\\n The allegations did not allege this level of severity. They did not allege\\n\\ninterference with Ms. Doe’s control of I.B.’s medical treatment other than Ms.\\n\\nWoodard’s performing an initial examination to determine whether I.B. had been\\n\\nabused. To the extent this was a “medical decision,” it hardly rose to the level of what\\n\\nprecedent requires for “shocks the conscience.”\\n\\n\\n\\n\\n 40\\n\\n b. Familial association\\n\\n Ms. Doe’s familial association allegations similarly did not “shock the\\n\\nconscience” under Halley. We consider whether the complaint alleged (1) a\\n\\ndeprivation of Ms. Doe’s protected relationship with I.B. that (2) “unduly burdened”\\n\\nthat relationship in a manner that was “egregious,” “outrageous,” “unrestrained,”\\n\\n“brutal,” and a display of arbitrary power being used “as an instrument of oppression.”\\n\\nMoore, 438 F.3d at 1040; Hernandez, 734 F.3d at 1261; Breithaupt, 352 U.S. at 435.\\n\\n Again, the complaint did not allege this level of severity. The Does argue in\\n\\ntheir brief that their complaint should be read to allege that Ms. Woodard intended to\\n\\nseparate I.B. from her mother to conduct an examination without the mother present.\\n\\nBut even if the complaint could be read this way, it still needed to allege an intended\\n\\ndeprivation or suspension of the parent-child relationship that shocks the conscience.\\n\\nSee, e.g., Thomas v. Kaven, 765 F.3d 1183, 1195-96 (10th Cir. 2014) (complaint\\n\\nsufficiently stated claim for § 1983 familial association claim where it was alleged\\n\\nDefendant, upon suspecting domestic sexual abuse, placed a medical hold on a child to\\n\\nprevent parents from taking the child home from the hospital). Here, the complaint\\n\\nlacked allegations that Ms. Woodard’s motivation was anything other than to\\n\\ninvestigate potential child abuse.\\n\\n Moreover, the search happened during school hours when I.B.’s mother would\\n\\nnot otherwise have been with her. To the extent I.B. was separated from her mother\\n\\n\\n 41\\n\\nduring a time when she would have wanted her mother to be present, this is a far cry\\n\\nfrom the substantial separation required in other cases. See, e.g., Thomas, 765 F.3d at\\n\\n1188-90, 1197-98 (Fourteenth Amendment claim stated where plaintiff’s daughter\\n\\nallegedly separated coercively for weeks in mental health ward); Roska, 328 F.3d at\\n\\n1238-39, 1246 (familial association Fourteenth Amendment claim stated where child\\n\\nwas removed from home and placed under protective care for a week).\\n\\n * * * *\\n\\n In summary, the Does have failed to state a Fourteenth Amendment substantive due\\n\\nprocess claim for violation of parental rights or interference with familial association\\n\\nagainst the Defendants.\\n\\n III. CONCLUSION\\n\\n We affirm the district court’s (1) dismissal of the I.B.’s Fourth Amendment\\n\\nclaims under qualified immunity, and (2) dismissal of the Does’ Fourteenth\\n\\nAmendment claims for failure to state a claim.28\\n\\n\\n\\n\\n 28\\n We also affirm the district court’s denial of the Does’ motion for leave to\\namend their complaint. Amendment would have been futile given this opinion’s\\nanalysis of clearly established law. See Jefferson Cty. Sch. Dist. No. R-1 v. Moody’s\\nInv’rs Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999) (“Although [Federal Rule of\\nCivil Procedure] 15(a) provides that leave to amend shall be given freely, the district\\ncourt may deny leave to amend where amendment would be futile.”).\\n\\n 42\\n\\nNo. 18-1066, Doe v. Woodard\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4355865/\", \"author_raw\": \"MATHESON, Circuit Judge.\"}, {\"author\": \"BRISCOE, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"BRISCOE, Circuit Judge, concurring in part, dissenting in part.\\n\\n I agree with the majority that it is not clearly established that a social worker\\n\\ninvestigating an allegation of child abuse must obtain a warrant before searching a child.\\n\\nBut, as the majority acknowledges, uncertainty about whether Ms. Woodard was required\\n\\nto obtain a warrant does not fully dispose of I.B.’s Fourth Amendment claim. Maj. Op. at\\n\\n26. “[T]he Does could still attempt to show that Ms. Woodard’s search failed to meet\\n\\nclearly established minimal Fourth Amendment reasonableness standards applicable to\\n\\nspecial needs searches.” Id. The majority concludes that the Does have not made this\\n\\nshowing because the law is not clearly established; in the majority’s view, the cases\\n\\napplying the special needs exception to a search of the intimate areas of a child’s body\\n\\nare too factually dissimilar from Ms. Woodard’s search of I.B. Id. at 28.\\n\\n I disagree. Even assuming the special needs exception applied, it was clearly\\n\\nestablished in December 2014 that Ms. Woodard’s search of I.B.’s intimate areas—a\\n\\nsearch that Ms. Woodard conducted without parental consent or a specific suspicion that\\n\\nevidence of abuse would be found—was unconstitutional. Any reasonable person would\\n\\nhave known, based on Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th Cir. 2003), cert.\\n\\ndenied, 540 U.S. 1179 (2004), and Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S.\\n\\n364 (2009), that Ms. Woodard’s search violated the Fourth Amendment. Accordingly, I\\n\\nwould reverse the district court’s dismissal of the Does’ Fourth Amendment claims\\n\\nagainst April Woodard, Christina Newbill, Shirley Rhodus, and Richard Bengtsson in\\n\\ntheir individual capacities, and remand for further proceedings. I would also reverse the\\n\\ndistrict court’s denial of the Does’ motion for leave to file a Second Amended Complaint.\\n\\nFor these reasons, I respectfully dissent.1\\n\\n I\\n\\n Ms. Woodard is entitled to qualified immunity “under § 1983 unless (1) [she]\\n\\nviolated a federal statutory or constitutional right, and (2) the unlawfulness of [her]\\n\\nconduct was ‘clearly established at the time.’” District of Columbia v. Wesby, 138 S. Ct.\\n\\n577, 589 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). I first address\\n\\nthe “clearly established” prong. McCoy v. Meyers, 887 F.3d 1034, 1045 (10th Cir. 2018)\\n\\n(“Courts have discretion to decide the order in which to engage the two qualified\\n\\nimmunity prongs.” (alterations omitted) (quoting Tolan v. Cotton, 572 U.S. 650, 656\\n\\n(2014)). “To be clearly established, a legal principle must have a sufficiently clear\\n\\nfoundation in then-existing precedent.” Wesby, 138 S. Ct. at 589. Two controlling cases\\n\\ndecided before December 2014—Dubbs, 336 F.3d 1194, and Safford, 557 U.S. 364—\\n\\napply the special needs exception to a search of the intimate areas of a child’s body.\\n\\n“Clearly established law ‘must [also] be particularized to the facts of the case.’” McCoy,\\n\\n887 F.3d at 1044 (quoting White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam)). I\\n\\ntherefore discuss the facts of Dubbs and Safford in detail.\\n\\n In Dubbs, a group of parents sued a Head Start program for violating their\\n\\ntoddlers’ Fourth Amendment rights by conducting medical exams on the toddlers without\\n\\nparental consent. 336 F.3d at 1199–1200. “The children were required to lower or\\n\\n 1\\n I agree with the majority’s conclusions regarding the Does’ Fourteenth\\nAmendment claims.\\n\\n 2\\n\\nremove their underclothes and were given a medical examination that included, among\\n\\nother things, a genital exam and blood test.” Id. at 1200. The district court granted\\n\\nsummary judgment to the Head Start program because it found that the searches were\\n\\nreasonable under the special needs exception. Id. at 1201. The special need asserted was\\n\\n“that the physical examination of a child, done in order to comply with federal\\n\\nregulations, is an effective means of identifying physical and developmental impediments\\n\\nin children prior to them starting school.”2 Id. at 1214 (quotation marks omitted).\\n\\nWithout “resolv[ing] whether the ‘special needs’ doctrine applie[d],” we reversed\\n\\n“because it [was] plain that, if performed without the necessary consent, the searches\\n\\nwere unconstitutional even [under] the ‘special needs’ balancing test.” Id. at 1214.\\n\\n We explained that, “[i]n special needs cases, . . . the warrant and probable cause\\n\\nrequirement [is replaced] with a balancing test that looks to the nature of the privacy\\n\\ninterest, the character of the intrusion, and the nature and immediacy of the government’s\\n\\ninterest.”3 Id. at 1213. We also emphasized that “[t]he premise of the ‘special needs’\\n\\ndoctrine is that . . . compliance with ordinary Fourth Amendment requirements would be\\n\\n‘impracticable.’” Id. at 1214 (quoting Bd. of Educ. v. Earls, 536 U.S. 822, 829 (2002)).\\n\\nThe searches conducted by the Head Start program were plainly unconstitutional because\\n\\n\\n\\n\\n 2\\n We concluded that there was a genuine issue of fact about whether the\\n“discovery of child abuse was one purpose of the exams.” Dubbs, 336 F.3d at 1205.\\n 3\\n Dubbs was decided prior to Safford, so the special needs test is articulated\\nslightly differently in each case.\\n\\n 3\\n\\n“[t]here [was] no reason[] . . . to think that parental notice and consent [was]\\n\\n‘impracticable.’” Id. at 1215.\\n\\n Lack of parental consent was a decisive fact in Dubbs because “the requirement\\n\\n. . . of parental consent in the case of minor children[] serves important practical as well\\n\\nas dignitary concerns, even when a social welfare agency . . . believes it is acting for the\\n\\ngood of the child.” Id. at 1207. “Even beyond constitutional values of privacy, dignity,\\n\\nand autonomy, parental notice and consent for childhood physical examinations are of\\n\\nsignificant practical value.” Id. Parents can “provide medical histories, discuss potential\\n\\nissues with the health care professionals, help to explain the procedures to the children,\\n\\nand reassure them about the disturbing and unfamiliar aspects of the exam—which\\n\\nincluded . . . visual . . . inspection of genitals by strangers.” Id.\\n\\n Six years after Dubbs, the Supreme Court also analyzed the constitutionality of a\\n\\nsearch of a child’s intimate areas under the special needs exception. See Safford, 557\\n\\nU.S. 364. In Safford, a 13-year-old student was accused of distributing prescription and\\n\\nover-the-counter medications to other students at her school. Id. at 368. The pills had\\n\\npreviously made another student sick. Id. at 372. In an effort to locate the medications,\\n\\nan assistant principal and administrative assistant searched the accused student’s\\n\\nbackpack, but found nothing. Id. The assistant principal then “instructed [the assistant]\\n\\nto take [the student] to the school nurse’s office to search her clothes for pills.” Id. at\\n\\n369. They found no medications. Id. Having already removed all of her clothing except\\n\\nher underwear, the student “was told to pull her bra out and to the side and shake it, and\\n\\nto pull out the elastic on her underpants, thus exposing her breasts and pelvic area to\\n\\n 4\\n\\nsome degree.” Id. Again, “[n]o pills were found.” Id. The student’s mother sued the\\n\\nassistant principal for violating her daughter’s Fourth Amendment rights. Id.\\n\\n The Court explained that this type of search “implicate[s] the rule of\\n\\nreasonableness as stated in [New Jersey v. T.L.O., 469 U.S. 325 (1985)], that ‘the search\\n\\nas actually conducted [be] reasonably related in scope to the circumstances which\\n\\njustified the interference in the first place.’” Id. at 375 (second alteration in original)\\n\\n(quoting T.L.O., 469 U.S. at 341). Under this special needs test, “[t]he scope [of the\\n\\nsearch] will be permissible[] . . . when it is ‘not excessively intrusive in light of the age\\n\\nand sex of the [child] and the nature of the’” government’s interest in conducting the\\n\\nsearch. Id. (quoting T.L.O., 469 U.S. at 342).\\n\\n The Court emphasized the severity of a search that “expos[es]” a child’s “intimate\\n\\nparts.” Id. at 377. “[B]oth subjective and reasonable societal expectations of personal\\n\\nprivacy support the treatment of . . . a search [of a child’s intimate areas] as categorically\\n\\ndistinct” from more limited searches of her “outer clothing and belongings.” Id. at 374.\\n\\n“The meaning of such a search, and the degradation its subject may reasonably feel, place\\n\\na search that intrusive in a category of its own demanding its own specific suspicions.”\\n\\nId. at 377. “[G]eneral background possibilities fall short; a reasonable search [so]\\n\\nextensive calls for suspicion that it will pay off.” Id. at 376. Ultimately, the Court held\\n\\nthat the assistant principal’s search was unconstitutional because he did not possess facts\\n\\nsuggesting either that the alleged medications posed any “danger to the students” or that\\n\\nthe student was hiding medications “in her underwear.” Id. at 376–77.\\n\\n\\n\\n 5\\n\\n The legal principle controlling the constitutionality of Ms. Woodard’s search of\\n\\nI.B. is clearly established because Dubbs and Safford are “particularized to the facts of\\n\\n[this] case.” McCoy, 887 F.3d at 1044 (quoting Pauly, 137 S. Ct. at 552). Both cases\\n\\nanalyze the search of the intimate areas of a child’s body under the special needs\\n\\nexception, which is the issue presented here. In both cases, the searches were justified by\\n\\nthe state’s interest in child welfare—“identifying physical and developmental\\n\\nimpediments” in Dubbs, 336 F.3d at 1214, and preventing students from distributing\\n\\nmedications in Safford. Both searches were conducted by multiple adults, on school\\n\\nproperty, without parental notification, consent, or presence. In both Dubbs and Safford,\\n\\nthe searches violated the Fourth Amendment.\\n\\n This “precedent [is] clear enough that every reasonable official would interpret it\\n\\nto establish the particular rule the [Does] seek[] to apply,” Wesby, 138 S. Ct. at 590,\\n\\nnamely that Ms. Woodard’s search needed to be “justified at its inception and reasonably\\n\\nrelated in scope to the circumstances that justified the interference in the first place,”\\n\\nAplt. Br. at 36 (citing Safford, 557 U.S. at 375). See Jones v. Hunt, 410 F.3d 1221,\\n\\n1228–31 (10th Cir. 2005) (reversing grant of qualified immunity to a social worker who\\n\\nseized a student on school property because the seizure was not “justified at its\\n\\ninception”). Given their factual similarities to the search at issue here, Dubbs and Safford\\n\\n“obviously resolve whether the circumstances . . . confronted” by Ms. Woodard satisfied\\n\\nthe special needs exception. Wesby, 138 S. Ct. at 590 (quotation marks omitted).\\n\\n The majority concludes that the searches at issue in Dubbs and Safford are too\\n\\ndissimilar from Ms. Woodard’s search of I.B. for Dubbs and Safford to be clearly\\n\\n 6\\n\\nestablished law. Maj. Op. at 28–32. I do not think that Defendants are entitled to\\n\\nqualified immunity based on the factual differences between Dubbs, Safford, and\\n\\nWoodard’s search of I.B. “[T]here does not have to be ‘a case directly on point[;]’\\n\\nexisting precedent must [have] place[d] the lawfulness of the particular [action] ‘beyond\\n\\ndebate.’” Wesby, 138 S. Ct. at 590 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741\\n\\n(2011)). At the very least, Safford clearly established the legal principle that, under the\\n\\nspecial needs exception, a government official’s search of a child’s body must be\\n\\n“reasonably related in scope to the circumstances which justified the interference in the\\n\\nfirst place.” 557 U.S. at 375 (quoting T.L.O., 469 U.S. at 341). Safford also established\\n\\nthat, because of “the categorically extreme intrusiveness of a search down to the body,”\\n\\nsuch a search “requires some justification in suspected facts, general background\\n\\npossibilities fall short.” Id. at 376. To be “reasonable,” a “search that extensive calls for\\n\\nsuspicion that it will pay off.” Id.\\n\\n Ms. Woodard could not have thought herself exempt from Safford. “We have held\\n\\nthat the Fourth Amendment subjects state social workers to its requirements,” Jones, 410\\n\\nF.3d at 1225, because “[t]here is no ‘social worker’ exception to the Fourth Amendment,”\\n\\nDubbs, 336 F.3d at 1205. Neither does the fact that Ms. Woodard was investigating an\\n\\nallegation of child abuse meaningfully set her apart from a school administrator\\n\\ninvestigating the distribution of medications on campus. See Dubbs, 336 F.3d at 1206\\n\\n(“The focus of the [Fourth] Amendment is . . . on the security of the person, not the\\n\\nidentity of the searcher or the purpose of the search.”); Franz v. Lytle, 997 F.2d 784, 793\\n\\n(10th Cir. 1993) (A police officer’s “motive to protect [a] child [from abuse] does not\\n\\n 7\\n\\nvitiate [the child’s] Fourth Amendment rights.”). While the effective investigation of\\n\\nchild abuse is “a strong government interest,” Roska ex rel. Roska v. Peterson, 328 F.3d\\n\\n1230, 1242 (10th Cir. 2003), that does not relieve a social worker of her obligation to\\n\\njustify the search of a child’s intimate areas with “facts,” not “general possibilities,”\\n\\nSafford, 557 U.S. at 376.4\\n\\n As I discuss in the next section, this is where Ms. Woodard fell short of meeting\\n\\nthe standard required by clearly established law. The Does have pled an unconstitutional\\n\\nsearch under Safford because they have alleged that Ms. Woodard was not aware of\\n\\nspecific facts to justify a reasonable suspicion that she would find evidence of abuse by\\n\\nexamining I.B.’s intimate areas. See McCoy, 887 F.3d at 1052–53 (concluding that\\n\\nprecedent was clearly established law even though “not factually identical” to the case on\\n\\nappeal because the precedent was “factually analogous” and “share[d] . . . decisive\\n\\nfactual circumstance[s]” with the case on appeal).\\n\\n II\\n\\n Because I would conclude that there is clearly established law on the question of\\n\\nwhether Ms. Woodard’s search was constitutional under the special needs exception, I\\n\\nwould also address the remaining prong of the qualified immunity test—whether Ms.\\n\\nWoodard “violated [I.B.’s] federal . . . constitutional right.” Wesby, 138 S. Ct. at 589.\\n\\n\\n 4\\n “[W]e must be sensitive to the fact that society’s interest in the protection of\\nchildren is, indeed, multifaceted, composed not only with concerns about the safety and\\nwelfare of children from the community’s point of view, but also with the child’s\\npsychological well-being, autonomy, and relationship to the family or caretaker setting.”\\nFranz, 997 F.2d at 792–93.\\n\\n 8\\n\\nMs. Woodard’s search needed to be “reasonably related in scope to the circumstances\\n\\nwhich justified the interference in the first place,” meaning that the search should “not\\n\\n[have been] excessively intrusive in light of the age and sex of [I.B.] and the nature of\\n\\nthe” government interest. Safford, 557 U.S. at 375 (quoting T.L.O., 469 U.S. at 341,\\n\\n342). Certainly, the government’s interest in thoroughly and promptly investigating\\n\\nallegations of child abuse is weighty. See Roska, 328 F.3d at 1242 (“It is true that the\\n\\nstate has a strong interest in protecting children, and that this interest should be taken into\\n\\naccount in evaluating the reasonableness of [a] search . . . .”). But that interest does not\\n\\nsupersede I.B.’s Fourth Amendment right to be free from unreasonable search. See id.\\n\\nAccording to the operative First Amended Complaint, Ms. Woodard was never aware of\\n\\nfacts that could have justified such an intrusive search of a four-year-old girl, even under\\n\\nthe special needs exception. See Jones, 410 F.3d at 1223 (“When reviewing a dismissal\\n\\npursuant to Rule 12(b)(6), we accept the well-pleaded allegations of the complaint as true\\n\\nand view them in the light most favorable to the plaintiff.”). Because this analysis is fact-\\n\\nintensive, I recount and expand upon the facts discussed by the majority.\\n\\n The El Paso County Department of Human Services “received a report that I.B.\\n\\nwas being abused” on December 9, 2014. App. Vol. I at 15. “Allegations of abuse\\n\\nincluded little bumps on I.B.’s face, a bruise about the size of a nickel on her neck, a\\n\\nsmall red mark on her lower back, two small cuts on her stomach, and bruised knees.”\\n\\nId. The next day, on December 10, 2014, Ms. Woodard went to I.B.’s school. Id. at 16.\\n\\nAt that time, Ms. Woodard had already “received permission from her supervisor[] . . . to\\n\\n\\n\\n 9\\n\\nview I.B.’s buttocks, stomach/abdomen, and back so [she] could look for marks/bruises.”\\n\\nId. (quotation marks omitted).\\n\\n I.B was taken to the school nurse’s office with Ms. Woodard and a school health\\n\\nparaprofessional. Id. Without first assessing the accuracy of the report of abuse—which,\\n\\ngiven the location of the alleged injuries, could have been accomplished without fully\\n\\nremoving I.B.’s clothes—“Ms. Woodard instructed I.B. to show her buttocks and\\n\\nstomach and back.” Id. Ms. Woodard and the school health employee then “took off all\\n\\nI.B.’s clothes” and “viewed I.B.” Id. When Ms. Woodard later documented her findings,\\n\\nshe noted that “the marks observed were not consistent with the” report of alleged abuse.\\n\\nId. at 17.\\n\\n Nevertheless, Ms. Woodard and the school nurse “prepared to take photographs.”\\n\\nId. at 16. “I.B. told Ms. Woodard she did not want photographs taken.” Id. Undeterred,\\n\\nMs. Woodard “took color photographs of private and unclothed areas of I.B.’s body.” Id.\\n\\nAt no point did Ms. Woodard notify Ms. Doe of her plan to search I.B. or seek consent\\n\\nfrom Ms. Doe to conduct the search. See id. at 17.\\n\\n The next day, on December 11, 2014, Ms. Woodard visited the Does’ home to\\n\\ncontinue her investigation. Id. at 16. On January 5, 2015, “[t]he case was closed as\\n\\nunfounded.” Id. at 17.\\n\\n Safford dictates the outcome of this case. The privacy intrusion at issue here is\\n\\nmore serious than in Safford, where the student’s “breasts and pelvic area” were briefly\\n\\nexposed “to some degree,” 557 U.S. at 374, because Ms. Woodard removed all of I.B.’s\\n\\nclothes and took color photographs of I.B.’s naked body. To survive Fourth Amendment\\n\\n 10\\n\\nscrutiny, even under the special needs exception, Ms. Woodard’s search would have\\n\\nrequired “specific suspicions” that I.B was in “danger” or that there was “evidence of\\n\\nwrongdoing” in the private areas of I.B.’s body. Id. at 377. As alleged, Ms. Woodard\\n\\nhad neither.\\n\\n The Does’ allegations do not support an inference that Ms. Woodard believed I.B.\\n\\nto be in particular danger. See id. at 375–76 (“[T]he content of the [vice principal’s]\\n\\nsuspicion failed to match the degree of intrusion” because “[h]e must have been aware of\\n\\nthe nature and limited threat of the specific drugs he was searching for[.]”). DHS did not\\n\\ndispatch Ms. Woodard to investigate the allegation of abuse until the day after its receipt,\\n\\nwhen I.B. was already back at school. It is reasonable to infer that, had DHS or Ms.\\n\\nWoodard considered I.B. to be in particular danger, Ms. Woodard would have intervened\\n\\nmore promptly. Nor is there any indication that, when Ms. Woodard arrived at the\\n\\nschool, I.B. appeared more injured or more in danger than the report suggested.\\n\\n Neither could Ms. Woodard have had a “specific suspicion[]” that evidence of\\n\\nabuse would be found in the private areas of I.B.’s body. Id. at 377. No facts were pled\\n\\nthat support such a suspicion. The report of abuse was limited to I.B.’s neck, back,\\n\\nstomach, and knees—all non-private, or at least less private, areas of I.B.’s body.\\n\\nNothing more than a “general background possibilit[y]” could have supported Ms.\\n\\nWoodard’s apparent belief that she would find evidence of abuse by fully undressing I.B.\\n\\nId. at 376. But as the Supreme Court has held, such general possibilities “fall short”\\n\\nwhen “the categorically extreme intrusiveness of a search down to the body of a” child is\\n\\nat issue. Id. Even if Ms. Woodard had initially limited her search to the areas of I.B.’s\\n\\n 11\\n\\nbody implicated by the report of abuse—which Ms. Woodard did not do—she would\\n\\nhave learned no facts to support expanding the search; “the marks observed were not\\n\\nconsistent with the” report of abuse. App. Vol. I at 17. Therefore, based on Safford, Ms.\\n\\nWoodard’s search was unconstitutional under the special needs exception to the Fourth\\n\\nAmendment.\\n\\n I would reach the same conclusion relying on Dubbs. Ms. Woodard’s search was\\n\\nunreasonable because she had “no justification for proceeding without parental notice and\\n\\nconsent.” Dubbs, 336 F.3d at 1214. Ms. Woodard began to investigate the allegation of\\n\\nabuse the day after the report was received by DHS, ostensibly giving Ms. Woodard time\\n\\nto speak with Jane Doe, I.B.’s mother. App. Vol. I at 15–16. In fact, Ms. Woodard had\\n\\ntime to secure her supervisor’s approval for the search prior to arriving at I.B.’s school,\\n\\nid. at 16, making it all the more reasonable to infer that Ms. Woodard had time to seek\\n\\nconsent from Ms. Doe. Instead, Ms. Woodard elected to search I.B. without Ms. Doe’s\\n\\nconsent, which left four-year-old I.B. alone in the school nurse’s office as two adult\\n\\nstrangers examined and photographed her naked body in search of signs of physical\\n\\nabuse. Ms. Doe could not “discuss potential issues with” Ms. Woodard, “help to explain”\\n\\nthe search to I.B., or “reassure [I.B.] about the disturbing and unfamiliar aspects of the\\n\\nexam.” Dubbs, 336 F.3d at 1207. “[I]t is plain that” Ms. Woodard’s search of I.B. was\\n\\n“unconstitutional.” Id. at 1214.\\n\\n\\n\\n\\n 12\\n\\n The unconstitutional nature of Ms. Woodard’s search becomes even clearer upon\\n\\nconsideration of new facts alleged in the proposed Second Amended Complaint.5 First,\\n\\nthe Does allege that Ms. Woodard was aware, before she searched I.B., of a previous\\n\\nunfounded report of abuse from I.B.’s school. App. Vol. I at 206. Ms. Woodard also\\n\\n“knew that Jane Doe had been cooperative in [the] previous DHS investigation.” Id.\\n\\nSecond, the Does allege that Ms. Woodard “interviewed I.B. at her school prior” to the\\n\\nsearch. Id. at 230. During this interview, “I.B. told [Ms.] Woodard that she gets red dots\\n\\non her face when she cries, but that she did not have any other ‘owies.’” Id.\\n\\n Because Ms. Woodard knew that I.B.’s school had previously made an unfounded\\n\\nreport of abuse, it was less reasonable for Ms. Woodard to rely on a report from the same\\n\\nsource to justify a search of the intimate areas of I.B.’s body. That Ms. Woodard knew\\n\\nMs. Doe had cooperated in the previous DHS investigation also made it less reasonable\\n\\nfor Ms. Woodard to search I.B. without first attempting to notify Ms. Doe. Finally, when\\n\\nI.B. explained the marks on her face and denied any other injuries, it was not reasonable\\n\\nfor Ms. Woodard to then expand the search beyond the scope of reported abuse, to\\n\\ninclude I.B.’s entire body. Ms. Woodard’s “search[,] as actually conducted,” needed to\\n\\nbe “reasonably related in scope to the circumstances which justified the [search] in the\\n\\nfirst place.” Safford, 557 U.S. at 375. The new facts alleged in the proposed Second\\n\\n 5\\n Because the Does’ motion for leave to amend was not futile, in that it would state\\na claim under the Fourth Amendment, I would also reverse the district court’s denial of\\nthe motion to amend. See Miller ex rel. S.M. v. Bd. of Educ., 565 F.3d 1232, 1249 (10th\\nCir. 2009) (“[W]hen denial [of a motion to amend a pleading] is based on a determination\\nthat amendment would be futile, our review for abuse of discretion includes de novo\\nreview of the legal basis for the finding of futility.”).\\n\\n 13\\n\\nAmended Complaint make it all the more plain that Ms. Woodard’s search was\\n\\nunconstitutional.\\n\\n Because I would conclude that Ms. Woodard violated I.B.’s clearly established\\n\\nFourth Amendment rights, “it [would] become[] [Defendants’] burden to prove that her\\n\\nconduct was nonetheless objectively reasonable.” Roska, 328 F.3d at 1251. Defendants\\n\\nargue that Ms. Woodard’s search was objectively reasonable because it was authorized\\n\\nby statute. “In considering the objective legal reasonableness of the state officer’s\\n\\nactions, one relevant factor is whether the defendant relied on a state statute, regulation,\\n\\nor official policy that explicitly sanctioned the conduct in question.” Id. (quotation marks\\n\\nomitted). “[A]n officer’s reliance on an authorizing statute does not render the conduct\\n\\nper se reasonable,” but “the existence of a statute or ordinance authorizing particular\\n\\nconduct is a factor which militates in favor of the conclusion that a reasonable official\\n\\nwould find that conduct constitutional.” Id. at 1252 (quotation marks omitted).\\n\\n [A] court must consider whether reliance on the statute rendered the\\n [official’s] conduct “objectively reasonable,” considering such\\n factors as: (1) the degree of specificity with which the statute\\n authorized the conduct in question; (2) whether the officer in fact\\n complied with the statute; (3) whether the statute has fallen into\\n desuetude; and (4) whether the officer could have reasonably\\n concluded that the statute was constitutional.\\n\\nId. at 1253 (footnotes omitted).\\n\\n Defendant’s rely on Colorado Revised Statute § 19-3-306(1), which states: “Any\\n\\n. . . social worker . . . who has before him a child he reasonably believes has been abused\\n\\nor neglected may take or cause to be taken color photographs of the areas of trauma\\n\\n\\n\\n 14\\n\\nvisible on the child.” I do not think this statute renders Ms. Woodard’s search\\n\\nreasonable.\\n\\n First, the statute does not authorize Ms. Woodard to undress I.B. The statute\\n\\nspecifically limits Ms. Woodard’s authority to photograph “areas of trauma” that are\\n\\n“visible.” Id. That implies some areas of trauma are not visible. Once a child is\\n\\nundressed, all external areas of trauma become visible. But the statute says nothing about\\n\\nwhat procedures a social worker must follow to undress a child.\\n\\n Moreover, Ms. Woodard did not photograph areas of trauma. The Does allege that\\n\\nWoodard took photographs of “private and unclothed areas of I.B.’s body,” App. Vol. I at\\n\\n16, even though the report of abuse only implicated non-private parts of I.B.’s body and\\n\\n“the marks observed [on I.B.’s body] were not consistent” with the report of abuse, id. at\\n\\n17.\\n\\n Ms. Woodard also let I.B. return to school and her mother’s custody, which further\\n\\nsuggests that Ms. Woodard did not “reasonably believe[ I.B.] ha[d] been abused or\\n\\nneglected.” Colo. Rev. Stat. § 19-3-306(1). Defendants have therefore not met their\\n\\nburden of showing that the state statute rendered Ms. Woodard’s search objectively\\n\\nreasonable. See Halley v. Huckaby, 902 F.3d 1136, 1151–52 (10th Cir. 2018) (state\\n\\nstatute authorizing interview of a suspected victim of child abuse “at any place” did not\\n\\nmake it reasonable to think that “DHS [could] . . . take a child into custody anywhere and\\n\\neverywhere”).\\n\\n III\\n\\n\\n\\n 15\\n\\n I concur in the majority’s rulings on the Fourteenth Amendment claims and would\\n\\nAFFIRM on those claims. Because I would conclude the Does have alleged that Ms.\\n\\nWoodard violated I.B.’s clearly established Fourth Amendment rights, I would\\n\\nREVERSE in part and REMAND for further proceedings on the Does’ Fourth\\n\\nAmendment claims, as alleged in the proposed Second Amended Complaint, against\\n\\nApril Woodard, Christina Newbill, Shirley Rhodus, and Richard Bengtsson in their\\n\\nindividual capacities.\\n\\n\\n\\n\\n 16\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4355865/\", \"author_raw\": \"BRISCOE, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"BRISCOE"},"judge2":{"kind":"string","value":"LUCERO"},"judge3":{"kind":"string","value":"MATHESON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4578612/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Jane DOE; I.B., Plaintiffs - Appellants, v. April WOODARD, in Her Individual Capacity; Christina Newbill, in Her Individual Capacity; Shirley Rhodus, in Her Individual Capacity; Richard Bengtsson, in His Individual Capacity; El Paso County Board of County Commissioners, Defendants - Appellees, and Reggie Bicha, in His Official Capacity as Executive Director of the Colorado Department of Human Services; Julie Krow, in Her Official Capacity as Executive Director of the El Paso County Department of Human Services, Defendants. Parental Rights Foundation; National Center for Housing and Child Welfare; National Coalition for Child Protection Reform ; Parent Guidance Center; Mark Freeman; Pacific Justice Institute, Amici Curiae.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-03\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 3, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\nJANE DOE; I.B.,\n\n Plaintiffs - Appellants,\n\nv. No. 18-1066\n\nAPRIL WOODARD, in her individual\ncapacity; CHRISTINA NEWBILL, in her\nindividual capacity; SHIRLEY RHODUS,\nin her individual capacity; RICHARD\nBENGTSSON, in his individual capacity;\nEL PASO COUNTY BOARD OF\nCOUNTY COMMISSIONERS,\n\n Defendants - Appellees,\n\nand\n\nREGGIE BICHA, in his official capacity as\nExecutive Director of the Colorado\nDepartment of Human Services; JULIE\nKROW, in her official capacity as\nExecutive Director of the El Paso County\nDepartment of Human Services,\n\n Defendants.\n_______________________\n\nPARENTAL RIGHTS FOUNDATION;\nNATIONAL CENTER FOR HOUSING\nAND CHILD WELFARE; NATIONAL\nCOALITION FOR CHILD PROTECTION\nREFORM; PARENT GUIDANCE\nCENTER; MARK FREEMAN; PACIFIC\nJUSTICE INSTITUTE,\n\n Amici Curiae.\n\n _________________________________\n\n Appeal from the United States District Court\n for the District of Colorado\n (D.C. No. 1:15-CV-01165-KLM)\n _________________________________\n\nTheresa Lynn Sidebotham, (Jessica Ross with her on the brief), of Telios Law PLLC,\nMonument, Colorado, for Plaintiffs - Appellants.\n\nKenneth R. Hodges, Senior Assistant County Attorney (Diana K. May, First Assistant\nCounty Attorney, with him on the brief), Colorado Springs, Colorado, for Defendants -\nAppellees.\n\nKevin T. Snider, Pacific Justice Institute, Sacramento, California, filed an Amicus Curiae\nbrief for Pacific Justice, in support of Appellants.\n\nDarren A. Jones and James R. Mason, III, Purcellville, Virginia, Martin Guggenheim and\nCarolyn Kubitschek, Alexandria, Virginia, Diane Redleaf, College Park, Maryland, and\nMark Freeman, Media, Pennsylvania, filed an Amici Curiae brief for Parental Rights\nFoundation, National Center for Housing and Child Welfare, National Coalition for Child\nProtection Reform, Parent Guidance Center, and Mark Freeman, Esq., in support of\nAppellants.\n _________________________________\n\nBefore BRISCOE, LUCERO, and MATHESON, Circuit Judges.\n _________________________________\n\nMATHESON, Circuit Judge.\n _________________________________\n\n I.B., a minor child, and her mother, Jane Doe (collectively, “Does”), claim that\n\nApril Woodard, a caseworker from the El Paso County Department of Human Services\n\n(“DHS”), a state agency, wrongfully searched I.B. at the Head Start preschool program\n\nin Colorado Springs. Without consent or a warrant, Ms. Woodard partially undressed\n\n\n\n 2\n\nI.B., performed a visual examination for signs of abuse, then photographed I.B.’s\n\nprivate areas and partially unclothed body.\n\n In their lawsuit, the Does alleged that Ms. Woodard and other DHS officials\n\nviolated the Fourth Amendment’s prohibition on unreasonable searches and the\n\nFourteenth Amendment’s protection against undue interference with parental rights and\n\nwith familial association. The Defendants moved to dismiss.1 The district court\n\ngranted the motion, holding that qualified immunity precludes the Fourth Amendment\n\nunlawful search claim and that the complaint failed to state a Fourteenth Amendment\n\nclaim.\n\n The Does appeal these rulings and the district court’s denial of leave to amend\n\ntheir complaint. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.\n\n I. BACKGROUND\n\n A. Factual Background\n\n In reviewing the grant of a motion to dismiss, we accept the allegations in the\n\ncomplaint as true and draw all reasonable inferences in favor of the non-moving party—\n\nhere, the Does. Mayfield v. Bethards, 826 F.3d 1252, 1255, 1258 (10th Cir. 2016).\n\n\n\n\n 1\n The Does sued six defendants, who are identified in the procedural history\nsection below.\n\n 3\n\n In December 2014, I.B. was attending preschool at the Head Start Program in\n\nColorado Springs.2 An anonymous source reported to DHS possible signs of abuse on\n\nI.B.’s body, including bumps on her face, a nickel-sized bruise on her neck, a small red\n\nmark on her lower back, two small cuts on her stomach, and bruised knees. DHS\n\ncaseworker April Woodard responded to the report, arriving to take I.B. to the nurse’s\n\noffice.3 Allegedly acting on instructions from DHS supervisor Christina Newbill, Ms.\n\nWoodard removed I.B.’s clothing and visually inspected and photographed I.B.’s buttocks,\n\nstomach, and back using a county-issued cell phone.4\n\n The Does alleged that the undressing and photographing were “executed under an\n\nunwritten, but well-established county-wide policy or custom encouraging the practice,\n\noften without first obtaining parental consent or a court order.” Aplt. Br. at 5 (citing Aplt.\n\n\n\n\n 2\n Pacific Justice’s amicus brief explains that Head Start is “a federally funded\npreschool in which children engage in a course of age-appropriate studies conducted by\na teacher. Although not a K-12 public school, Head Start primarily functions as an\neducational institution for very young children.” Pacific Justice Amicus Br. at 2\n(footnote omitted). The “program meets on public school campuses.” Id.\n\n 3\n This was the not DHS’s first investigation regarding I.B. The Does alleged\n that, between 2012 and 2014, DHS investigated their home “around half a dozen\n times, based on false reports that I.B. was being abused.” Am. Compl. ¶ 15. One\n investigation was based on a report that I.B. had marks resembling a hand print on\n her bottom and lower-back bruising. DHS visually examined I.B. with her clothing\n removed. DHS closed the investigation, finding in January 2014 the report was\n unfounded. Id. ¶¶ 24-32.\n 4\n According to Defendants, “the school’s health paraprofessional” assisted Ms.\nWoodard. Aplee. Br. at 7.\n 4\n\nApp., Vol. I at 21-28). They further alleged that Richard Bengtsson, then Executive\n\nDirector of the El Paso County DHS, issued the policy, and the director of Ms. Woodard’s\n\ndepartment, Shirley Rhodus, implemented it.\n\n The following day, Ms. Woodard visited Ms. Doe at home. DHS did not suspect\n\nher of abuse, and she cooperated with the investigation. Ms. Woodard did not inform\n\nMs. Doe that she had inspected and photographed I.B. in a state of partial undress. The\n\ncase was closed as unfounded.\n\n After DHS closed the case, I.B. told her mother about the incident, saying she\n\nhoped she would not see Ms. Woodard again because “I don’t like it when she takes all\n\nmy clothes off.” Aplt. App., Vol. I at 17. I.B. later said to Ms. Doe that Ms. Woodard\n\nhad taken photos of her against her will. Aplt. App., Vol. I at 18. When Ms. Doe\n\napproached Ms. Woodard about her daughter’s accusations, Ms. Woodard at first\n\ndenied them. Two months later, she reversed course and admitted that she did the\n\ninspection and took photographs. Ms. Woodard told Ms. Doe that a child abuse\n\naccusation and investigation takes priority over the mother’s parental rights.\n\n B. Procedural History\n\n The Does sued under 42 U.S.C. § 1983, alleging violation of I.B.’s Fourth\n\nAmendment rights and violations of I.B.’s and Ms. Doe’s Fourteenth Amendment\n\n\n\n\n 5\n\nrights.5 The Fourth Amendment claims were based on both the visual inspection and\n\nthe photographs; the Fourteenth Amendment claims only on the inspection. In addition\n\nto Ms. Woodard, the Does named as defendants Ms. Woodard’s supervisors, Ms.\n\nNewbill and Ms. Rhodus; Mr. Bengtsson, Executive Director of El Paso County DHS;\n\nReggie Bicha, Executive Director of Colorado DHS; and the El Paso Board of County\n\nCommissioners (“BOCC”). The Does sought damages and prospective relief against a\n\n“statewide and local policy and custom” encouraging “strip searching children\n\nwhenever injuries are alleged.” Aplt. App., Vol. I at 40. The Defendants moved to\n\ndismiss based on qualified immunity and failure to state a claim.\n\n1. Dismissal of Fourth Amendment Claims\n\n A magistrate judge6 concluded Ms. Woodard and her supervisors were entitled\n\nto qualified immunity on the Fourth Amendment claim7 and dismissed the claim\n\nwithout prejudice. When the Does sought to file an amended complaint, the court\n\nrejected the request on futility grounds and dismissed the claim with prejudice.\n\n\n\n\n 5\n Because I.B. is a minor, Ms. Doe brought her claims for her. Although we\nrefer to “the Does” when discussing the Fourth and Fourteenth Amendment claims, the\nFourth Amendment claims are solely on behalf of I.B.\n 6\n The parties agreed to have all proceedings in the case decided by a magistrate\njudge. See 28 U.S.C. § 636(c). We will refer to the magistrate judge’s court as the\n“district court.”\n 7\n Doe et al. v. Woodard et al., No. 1:15-CV-01165-KLM (D. Colo. Sept. 30,\n2016).\n 6\n\n a. Ms. Woodard and Ms. Newbill\n\n The district court dismissed the Fourth Amendment claim against Ms. Woodard\n\nand Ms. Newbill because the law was not so “clearly established” as to “give\n\nDefendants fair warning that the taking photographs of portions of I.B.’s unclothed\n\nbody required a warrant.” Dist. Court Op. at 16.\n\n To the extent the Fourth Amendment claim was based on the Defendants’ failure\n\nto show that the “special needs” doctrine justified the search, the district court\n\nrecognized that a special needs search comports with the Fourth Amendment only if it\n\nis “justified at its inception” and “reasonably related in scope to the circumstances\n\nwhich justified interference in the first place.” Id. at 19 (quotations omitted). But, the\n\ndistrict court concluded, the Does’ complaint “lack[ed] allegations” the search was\n\nunjustified at its inception or was improper in scope. Id.8\n\n The district court dismissed the Does’ Fourth Amendment claim without\n\nprejudice.\n\n b. Ms. Rhodus and Mr. Bengtsson\n\n The district court dismissed the Fourth Amendment § 1983 supervisory liability\n\nclaim against Ms. Rhodus and Mr. Bengtsson. Because qualified immunity shielded\n\ntheir supervisees, Ms. Woodard and Ms. Newbill, it also shielded them. Id. at 22. The\n\n\n 8\n The district court also said Defendants’ conduct was objectively reasonable\nbecause they complied with a Colorado statute authorizing photography in cases of\nsuspected child abuse. Id. (citing Colo. Rev. Stat. § 19-3-306).\n 7\n\ncourt also dismissed the claim for prospective relief against Ms. Rhodus and Mr.\n\nBengtsson, which demanded safeguards on storing photographs obtained in future\n\nsearches, because it was based only on a “mere potential violation.” Id. at 23-24.\n\n2. Dismissal of Fourteenth Amendment Claims\n\n a. Ms. Woodard and Ms. Newbill\n\n The district court dismissed, for failure to state a claim, the Does’ substantive\n\ndue process claims under the Fourteenth Amendment for violation of the parental right\n\nto direct medical care and of the right to familial association.\n\n i. Right to direct medical care\n\n The district court dismissed the parental rights claim, stating that (1) the visual\n\nexam of a child was not “essentially a medical procedure”; (2) the complaint did not\n\nallege that the exam “affected [I.B’s mother’s] right to direct [I.B.’s] medical care”;\n\nand (3) the complaint did not allege that the exam caused any “interference with\n\n[I.B.’s] medical treatment.” Id. at 31 (quotations omitted).\n\n ii. Right to familial association\n\n The district court dismissed the familial association claims, concluding the Does\n\ndid not sufficiently plead that (1) the Defendants intended to separate I.B. from her\n\nmother or that (2) the Defendants knew their conduct would adversely affect the\n\nfamilial relationship. Id.\n\n b. Ms. Rhodus, Mr. Bengtsson, and Mr. Bicha\n\n\n 8\n\n The district court also dismissed the Fourteenth Amendment supervisory claims\n\nagainst Ms. Rhodus and Mr. Bengtsson and the official capacity claims against Mr.\n\nBengtsson and Mr. Bicha because the complaint failed to allege an underlying violation\n\nof the Fourteenth Amendment.9\n\n3. Denial of Leave to Amend and Dismissal with Prejudice\n\n When the Does attempted to amend their complaint, the district court denied the\n\nrequest, stating that the Does “have not addressed the Court’s determination that\n\nDefendants were entitled to qualified immunity because the law was not clearly\n\nestablished with respect to whether Defendants needed a warrant in order to search the\n\nminor Plaintiff. In the absence of any case clearly establishing Plaintiffs’ rights as\n\nasserted, the Court cannot find that Defendants knowingly violated the law, even\n\nassuming that they committed a constitutional violation.” Aplt. App., Vol. II at 72-73\n\n(citations and quotations omitted).10\n\n\n\n\n 9\n The Does do not appeal the dismissal of the Fourteenth Amendment official-\ncapacity claims.\n 10\n The Does sued the BOCC for its role in the same alleged violations under the\nFourth and Fourteenth Amendments. The district court dismissed these claims because\nthe BOCC is a county rather than state entity and lacked final policymaking control.\nThis ruling is not on appeal.\n\n 9\n\n The district court also dismissed the Fourth and Fourteenth amendment claims\n\nwith prejudice.11\n\n\n\n\n 11\n The claim for prospective relief against Mr. Bengtsson and Mr. Bicha in their\nofficial capacities survived the motion to dismiss. Limited discovery was granted\nregarding standing on the claim, but it was later dismissed by stipulation of the parties.\nNo prospective claim against Ms. Rhodus and Mr. Bengtsson in their official capacity\nis part of this appeal.\n 10\n\n II. DISCUSSION\n\n Our discussion reviews (A) the district court’s qualified immunity dismissal of\n\nthe Does’ Fourth Amendment claims and (B) its dismissal of their Fourteenth\n\nAmendment claims for failure to state a claim. We affirm in both instances.\n\n A. Fourth Amendment Claims\n\n This section provides background on the standard of review; qualified immunity\n\nlaw; Fourth Amendment search requirements, with emphasis on the special needs\n\ndoctrine; and analysis of whether the Does have shown there was clearly established\n\nlaw at the time of the search to support their claim. We conclude they have not shown\n\nclearly established law that the special needs doctrine could not support the search in\n\nthis case. They therefore have not shown that a warrant clearly was required.12\n\n1. Standard of Review\n\n We review de novo the grant of a motion to dismiss under Rule 12(b)(6) due to\n\nqualified immunity. Estate of Lockett v. Fallin, 841 F.3d 1098, 1106 (10th Cir. 2016).\n\n\n 12\n This approach is similar to the one we followed in McInerney v. King, 791 F.3d\n1224 (10th Cir. 2015). In that case, the plaintiff brought a § 1983 action alleging a Fourth\nAmendment violation based on the defendant police officer’s warrantless search of her\nhome. We reversed the district court’s grant of qualified immunity. As in our case, the\nsearch was conducted without a warrant, and the defendant relied on an exception to the\nwarrant requirement to contest the Fourth Amendment claim. After reviewing the existing\ncase law, we concluded it was clearly established that the exigent circumstances exception\ndid not apply and therefore the defendant was not entitled to qualified immunity. Id. at\n1228. Here, after reviewing existing case law, the opinion concludes that the law was not\nclearly established that the special needs exception did not apply, and therefore the\ndefendants were entitled to qualified immunity.\n 11\n\n“At [the motion to dismiss] stage, it is the defendant’s conduct as alleged in the\n\ncomplaint that is scrutinized for ‘objective legal reasonableness.’” Behrens v.\n\nPelletier, 516 U.S. 299, 309 (1996).\n\n2. Legal Background\n\n a. Qualified immunity\n\n Under 42 U.S.C. § 1983, a person acting under color of state law who “subjects,\n\nor causes to be subjected, any citizen of the United States . . . to the deprivation of any\n\nrights, privileges, or immunities secured by the Constitution and laws, shall be liable to\n\nthe party injured . . . .” “Individual defendants named in a § 1983 action may raise a\n\ndefense of qualified immunity, which shields public officials from damages actions\n\nunless their conduct was unreasonable in light of clearly established law.” Estate of\n\nBooker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014) (citation, ellipsis, and quotations\n\nomitted).\n\n “[Q]ualified immunity protects ‘all but the plainly incompetent or those who\n\nknowingly violate the law.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting\n\nMalley v. Briggs, 475 U.S. 335, 341 (1986)). A motion to dismiss based on qualified\n\nimmunity imposes the burden on the plaintiff to show “both that [1] a constitutional\n\nviolation occurred and [2] that the constitutional right was clearly established at the\n\ntime of the alleged violation.” Green v. Post, 574 F.3d 1294, 1300 (10th Cir. 2009)\n\n(quotations omitted). A court evaluating qualified immunity is free to “exercise [its]\n\n\n 12\n\nsound discretion in deciding which of the two prongs of the qualified immunity\n\nanalysis should be addressed first in light of the circumstances in the particular case at\n\nhand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).\n\n A constitutional right is clearly established if it is “sufficiently clear that every\n\nreasonable official would have understood that what he is doing violates that right.”\n\nMullenix, 136 S. Ct. at 308 (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).\n\nThe plaintiff must show there is a “Supreme Court or Tenth Circuit decision on point,\n\nor the clearly established weight of authority from other courts must have found the\n\nlaw to be as the plaintiff maintains.” Klen v. City of Loveland, 661 F.3d 498, 511 (10th\n\nCir. 2011) (quotations omitted). Generally, “existing precedent must have placed the\n\nstatutory or constitutional question beyond debate” for a right to be clearly established.\n\nThe Estate of Lockett, 841 F.3d at 1107 (quoting Mullenix, 136 S. Ct. at 308).\n\n There “need not be a case precisely on point.” Redmond v. Crowther, 882 F.3d\n\n927, 935 (10th Cir. 2018). But “it is a ‘longstanding principle that clearly established\n\nlaw should not be defined at a high level of generality.’” Id. (quoting White v. Pauly,\n\n137 S. Ct. 548, 552 (2017) (per curiam)); see also District of Columbia v. Wesby, 138\n\nS. Ct. 577, 590 (2018) (“The clearly established standard . . . requires a high degree of\n\nspecificity.” (quotations omitted)). “[T]he salient question . . . is whether the state of\n\nthe law . . . gave [the defendants] fair warning that their alleged treatment of [the\n\nplaintiffs] was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).\n\n\n 13\n\n “[G]eneral statements of the law are not inherently incapable of giving fair and\n\nclear warning to officers, but in the light of pre-existing law the unlawfulness must be\n\napparent.” White, 137 S. Ct. at 552 (citations and quotations omitted). “[T]here can be\n\nthe rare obvious case, where the unlawfulness of the officer’s conduct is sufficiently\n\nclear even though existing precedent does not address similar circumstances.” Wesby,\n\n138 S. Ct. at 590 (quotations omitted).\n\n For supervisory liability, “[p]ersonal participation is an essential allegation in a\n\n1983 claim.” Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). A\n\nsupervisor cannot be held vicariously liable for the constitutional violations of\n\nsubordinates. See Serna v. Colo. Dep’t of Corr., 455 F.3d 1146, 1151 (10th Cir. 2003)\n\n(“Supervisors are only liable under § 1983 for their own culpable involvement in the\n\nviolation of a person’s constitutional rights.”) “[D]irect participation,” however, “is\n\nnot necessary.” Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir. 1990) (quotations\n\nomitted). “The requisite causal connection is satisfied if the defendant set in motion a\n\nseries of events that the defendant knew or reasonably should have known would cause\n\nothers to deprive the plaintiff of her constitutional rights.” Id. (quotations omitted).\n\n“[T]he establishment or utilization of an unconstitutional policy or custom can serve as\n\nthe supervisor’s affirmative link to the constitutional violation . . . . Where an official\n\nwith policymaking authority creates, actively endorses, or implements a policy which\n\nis constitutionally infirm, that official may face personal liability for the violations\n\n\n 14\n\nwhich result from the policy’s application.” Dodds v. Richardson, 614 F.3d 1185,\n\n1199 (10th Cir. 2010) (quotations and brackets omitted). Supervisors cannot be liable\n\nunder § 1983 where there is no underlying violation of a constitutional right by a\n\nsupervisee. See Martinez v. Beggs, 563 F.3d 1082, 1092 (10th Cir. 2009).\n\n b. Fourth Amendment search requirements\n\n i. The warrant requirement\n\n The Fourth Amendment protects people from unreasonable government searches\n\nof their “persons, houses, papers, and effects.” U.S. Const. Amend. IV. It “protects\n\nthe right of the people to be ‘secure in their persons’ from government intrusion\n\nwhether the threat to privacy arises from a policeman or a Head Start administrator.”\n\nDubbs v. Head Start, Inc., 336 F.3d 1194, 1205 (10th Cir. 2003). “There is no ‘social\n\nworker’ exception to the Fourth Amendment.” Id.\n\n As a general rule, a search requires a warrant based on probable cause. Illinois\n\nv. Gates, 462 U.S. 213, 239 (1983). “Searches conducted without a warrant are per se\n\nunreasonable under the Fourth Amendment—subject only to a few ‘specifically\n\nestablished and well-delineated exceptions.’” Roska ex rel. Roska v. Peterson, 328\n\nF.3d 1230, 1248 (10th Cir. 2003) (quoting Katz v. United States, 389 U.S. 347, 357\n\n\n\n\n 15\n\n(1967)). These exceptions include (1) consent;13 (2) exigent circumstances;14 and (3) a\n\n“special need.” In this case, there was no warrant, consent, or exigent circumstance.\n\nThe qualified immunity question concerns, therefore, (1) whether a warrant was\n\nrequired for the search because the special needs exception did not apply, and (2) if it\n\ndid, whether the search nonetheless violated the special needs doctrine.\n\n ii. Special needs doctrine\n\n “‘Special needs’ is the label attached to certain cases where ‘special needs,\n\nbeyond the normal need for law enforcement, make the warrant and probable-cause\n\nrequirement impracticable.’” Dubbs, 336 F.3d at 1212 (quoting Bd. of Educ. of Indep.\n\nSch. Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822, 830 (2002)).\n\n There is no definitive list of “special needs.” The Supreme Court has found a\n\nspecial need in a principal’s in-school search of a student’s purse for drugs; a public\n\n\n\n\n 13\n “It is . . . well settled that one of the specifically established exceptions to the\nrequirements of both a warrant and probable cause is a search that is conducted\npursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).\n 14\n “The exigent circumstances exception allows a warrantless search when an\nemergency leaves police insufficient time to seek a warrant. It permits, for instance,\nthe warrantless entry of private property when there is a need to provide urgent aid to\nthose inside, when police are in hot pursuit of a fleeing suspect, and when police fear\nthe imminent destruction of evidence.” Birchfield v. North Dakota, 136 S. Ct. 2160,\n2173 (2016) (citation omitted). “Warrants are generally required to search a person’s\nhome or his person unless the exigencies of the situation make the needs of law\nenforcement so compelling that the warrantless search is objectively reasonable under\nthe Fourth Amendment.” Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (quotations\nomitted) (brackets omitted).\n 16\n\nemployer’s search of an employee’s desk; a probation officer’s search of a\n\nprobationer’s home; a Federal Railroad Administration policy requiring employees to\n\ntake blood and urine tests following a major rail accident; drug testing of United States\n\nCustoms employees applying for drug interdiction jobs; schools’ random drug testing\n\nof athletes; and drug testing of public school students partaking in extracurricular\n\nactivities. See Dubbs, 336 F.3d at 1213 (collecting cases). In Dubbs, we synthesized\n\nthe special needs doctrine as follows:\n\n (1) an exercise of governmental authority distinct from that\n of mere law enforcement—such as the authority as\n employer, the in loco parentis authority of school officials,\n or the post-incarceration authority of probation officers;\n (2) lack of individualized suspicion of wrongdoing, and\n concomitant lack of individualized stigma based on such\n suspicion; and (3) an interest in preventing future harm,\n generally involving the health or safety of the person being\n searched or of other persons directly touched by that\n person’s conduct, rather than of deterrence or punishment\n for past wrongdoing.\n\nId. at 1213-14.\n\n State actors can invoke the special needs doctrine only when the purpose of the\n\nsearch is sufficiently “divorced from the State’s general interest in law enforcement.”\n\nFerguson v. City of Charleston, 532 U.S. 67, 79 (2001) (drug tests used in a state\n\nobstetrics ward not justified under special needs because they were coordinated with\n\nthe police).\n\n\n\n\n 17\n\n When it applies, the special needs doctrine employs a more relaxed test than the\n\none traditionally used under the Fourth Amendment to assess the reasonableness of a\n\nsearch. To evaluate special needs reasonableness, we have (1) required that (a) the\n\nsearch be “justified at its inception” and (b) reasonable in its “scope” given the\n\n“circumstances”;15 or we have (2) balanced government and private interests.16\n\n 1) Child abuse context: Supreme Court and Tenth Circuit\n\n The Supreme Court has not addressed the special needs doctrine in the context\n\nof social workers’ inspection of children upon suspicion of child abuse. It has rejected\n\nthe special needs doctrine to justify a search, but in a different child abuse context. In\n\nFerguson v. City of Charleston, 532 U.S. 67 (2001), the Court held that a hospital’s\n\ntesting of pregnant mothers in its maternity ward for cocaine and reporting results to\n\nauthorities under a theory that a positive result constituted “child abuse” did not qualify\n\nfor the special needs exception to the Fourth Amendment warrant requirement because\n\nof the program’s “pervasive involvement of law enforcement.” Id. at 70, 85.\n\n\n\n\n 15\n See, e.g., Edwards For and in Behalf of Edwards v. Rees, 883 F.2d 882, 884\n(10th Cir. 1989) (quoting New Jersey v. T.L.O., 469 U.S. 325, 341 (1985)). T.L.O., in\nturn, cites this test from Terry v. Ohio, 392 U.S. 1, 20 (1968).\n 16\n See, e.g., Dubbs: “[I]n special needs cases, the Court replaces the warrant and\nprobable cause requirement with a balancing test that looks to the nature of the privacy\ninterest, the character of the intrusion, and the nature and immediacy of the\ngovernment’s interest.” 336 F.3d at 1213.\n\n 18\n\n The Tenth Circuit has not previously addressed whether the special needs\n\ndoctrine applies to a social worker’s search of a student at school to detect evidence of\n\nsuspected abuse. We applied it in a child abuse context when a student at a public\n\nschool needed to be interviewed. Doe v. Bagan, 41 F.3d 571, 574 n.3 (10th Cir. 1994).\n\nThat case concerned a seizure, however, not a search, because it involved the\n\nquestioning of a minor suspected of abusing another child, not an inspection of the\n\nallegedly abused child. See id. In another case, we held that special needs did not\n\npermit a social worker, who suspected abuse, to enter a home and remove a child.\n\nRoska, 328 F.3d at 1242. In Franz v. Lytle, 997 F.2d 784 (10th Cir. 1993), we held that\n\neven if a police officer is performing the functions of a social worker in examining a\n\nyoung child’s private areas upon suspicion of abuse, the police officer nevertheless\n\nmust abide by the Fourth Amendment’s warrant requirement.17\n\n In Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th Cir. 2003), a school invoked\n\nthe special needs doctrine when it subjected an entire class of children to intrusive\n\nphysical examinations (including genital examinations and blood tests) without\n\nparental notice or consent, stating this was “done in order to comply with federal\n\nregulations [and] is an effective means of identifying physical and developmental\n\n\n\n\n 17\n We decided Franz before the Supreme Court held in Ferguson that social\nworkers are not categorically exempt from the warrant requirement when performing a\nsearch. Ferguson, 532 U.S. at 76 & n.9.\n\n 19\n\nimpediments in children prior to them starting school, a goal of Head Start.” Id. at\n\n1214. We did not decide whether the doctrine applied, holding instead that even if it\n\ndid, the searches were unconstitutional under the balancing test. The extreme privacy\n\ndeprivations involved in the invasive testing outweighed the ostensible special need of\n\ndoing a health assessment. Id. at 1214-15.\n\n We therefore have not established whether the special needs doctrine permits a\n\nsocial worker to search a child, such as by removing clothing and/or taking\n\nphotographs, to investigate a report of suspected abuse.\n\n 2) Child abuse context: other circuits and special needs\n\n Other circuits have split on whether a social worker’s examination of a child\n\nupon suspicion of abuse requires a warrant or qualifies for the special needs doctrine.\n\n The Seventh Circuit held that a social worker’s visual inspection of a child upon\n\nsuspicion of child abuse falls under the special needs doctrine and thus can proceed\n\nwithout a warrant, as long as the search passes the special needs balancing test and is\n\nfundamentally reasonable. Darryl H. v. Coler, 801 F.2d 893 (7th Cir. 1986).18 In\n\nWildauer v. Frederick County, 993 F.2d 369 (4th Cir. 1993), the Fourth Circuit held\n\nsocial workers’ warrantless examinations of potentially abused children in their foster\n\n\n\n\n 18\n The Seventh Circuit later limited this holding to searches on public as opposed\nto private property. Michael C. v. Gresbach, 526 F.3d 1008, 1016 (7th Cir. 2008).\n 20\n\nhomes should be evaluated under a special needs balancing and general\n\n“reasonableness” analysis, as opposed to probable cause.\n\n Four other circuits, however, have held that social worker examinations of\n\nchildren based on abuse suspicions are not candidates for special needs analysis. The\n\nThird Circuit, in Good v. Dauphin Cty. Soc. Servs. for Children & Youth, 891 F.2d\n\n1087 (3d Cir. 1989), held that social workers’ search of a child in his home required\n\neither a search warrant, consent, or exigent circumstances. The Ninth Circuit, in\n\nCalabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999), held that a social worker performing\n\na search on a child to investigate possible abuse must have a warrant, consent, or\n\nexigent circumstances, and may not rely on the special needs doctrine (especially in\n\nthis case where a police officer was also present with the social worker). The Second\n\nCircuit, in Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999), held that judicial\n\nauthorization was required for social workers to examine a student upon suspicion of\n\nabuse. Finally, the Fifth Circuit, in Roe v. Texas Dep’t of Protective & Regulatory\n\nServs., 299 F.3d 395 (5th Cir. 2002), held that social workers performing a visual body\n\ncavity search for suspected abuse needed a court order based on probable cause or\n\nexigent circumstances, and that they could not rely on the special needs doctrine. Roe\n\nemphasized, under Ferguson, the overlap of social workers with law enforcement\n\ninvestigating abuse militates against the applicability of the special needs doctrine. Id.\n\nat 406.\n\n\n 21\n\n3. Analysis\n\n We limit our qualified immunity analysis, as the district court did, to whether\n\nthe Does can satisfy the second prong of qualified immunity—that is, whether they can\n\nshow that any Fourth Amendment violation was based on clearly established law.\n\n Defendants do not contest that Ms. Woodard conducted a search for Fourth\n\nAmendment purposes.19 For the search to have been valid under the Fourth Amendment,\n\nMs. Woodard needed a warrant or one of the exceptions to the warrant requirement to\n\napply—consent, exigent circumstances, or the special needs doctrine. Because (1) Ms.\n\nWoodard did not obtain a warrant, (2) Ms. Doe did not consent to the search, and (3) the\n\ncircumstances were not exigent, the search would have been valid without a warrant only if\n\nthe special needs doctrine applied.\n\n The Does have not cited a Supreme Court or Tenth Circuit decision specifically\n\nholding that a social worker must obtain a warrant to search a child at school for evidence\n\nof reported abuse. Instead, they argue that (a) only a warrant could have justified the\n\nsearch of I.B. because the special needs doctrine did not apply, or (b) even if the special\n\nneeds doctrine did apply, Defendants’ conduct violated the Fourth Amendment\n\n\n\n\n 19\n Although the Defendants do not expressly and directly concede that I.B. was\nsubject to a search, they devote their brief to evaluating a “search” of this type. See,\ne.g.¸Aplee Br. at 14 (“This Court should consider a social worker’s visual inspection\nand photographing of a child, under the circumstances alleged, as an administrative\nsearch subject to the reasonableness balancing test . . . .”).\n\n 22\n\nreasonableness standards for a special needs search. The Does have not met their burden of\n\nshowing clearly established law on either ground.\n\n a. No showing of clearly established Fourth Amendment law on whether social\n worker searches examining for abuse qualified for the special needs\n exception\n\n In this section, we examine the Does’ attempts to show that Ms. Woodard’s\n\nsearch violated clearly established Fourth Amendment law in December 2014 because\n\nshe lacked a warrant and the special needs exception did not apply. They have failed to\n\ndo so. Based on our previous review of the case law and discussion below, we\n\nconclude that neither the Supreme Court nor this court had previously decided that the\n\nspecial needs exception does not apply to warrantless social worker searches for\n\nsuspected child abuse. Nor was the weight of authority from other circuits clearly\n\nestablished. We therefore hold that, when the search occurred in this case, there was\n\nno clearly established law that a warrant was required.\n\n i. Supreme Court and Tenth Circuit law\n\n The Does argue that Supreme Court and Tenth Circuit precedent on special\n\nneeds existing when Ms. Woodard searched I.B. may be read to find a Fourth\n\nAmendment violation under clearly-established law. They cite (1) Franz, which held\n\nthat a police officer could not search a young child without a warrant or consent upon\n\nsuspicion of abuse; (2) Dubbs, which held that examinations of children at school\n\nneeded a warrant, consent, or exigent circumstances, and that there is no general social\n\n\n 23\n\nworker exception to the Fourth Amendment; (3) Roska, for the proposition that the\n\nspecial needs doctrine can be used only when obtaining a warrant is impracticable; and\n\n(4) Ferguson, for the principle that “[e]xcessive entanglement with law enforcement\n\nrenders the special need exception inapplicable,” Aplt. Br. at 35.20\n\n The Does contend that these cases put the DHS caseworkers and their\n\nsupervisors on notice that Ms. Woodard could not undress and photograph I.B. without\n\na warrant, consent, or exigent circumstances. We disagree that these cases would have\n\nput a reasonable social worker on notice that her conduct violated the Fourth\n\nAmendment.\n\n First, Franz involved a police officer who searched a young child upon\n\nsuspicion of abuse, and held that the officer needed a warrant, consent, or exigent\n\ncircumstances to do so. In other words, the special needs doctrine did not apply. But a\n\npolice search is not a social worker search, and Franz does not address the latter.\n\n Second, Dubbs does not clearly establish Fourth Amendment law for a social\n\nworker’s search for child abuse in this case. In Dubbs, the school indiscriminately\n\ntested the entire class and performed much more invasive examinations. The defendant\n\nschool officials argued that the special need was for generalized health assessment to\n\n\n\n\n 20\n In their reply brief, the Does drop their reference to Ferguson in their clearly-\nestablished argument and rely only on Franz, Dubbs, and Roska. See Aplt. Reply Br.\nat 9.\n\n 24\n\ncomply with federal regulations, not to search for child abuse. Accordingly, Dubbs did\n\nnot address the issue presented here—whether Ms. Woodard’s search of I.B. for child\n\nabuse satisfied the Fourth Amendment as a special needs search.\n\n Third, Roska also does not provide clearly established law. In Roska, we said\n\nthat a special need must “make the warrant and probable-cause requirement\n\nimpracticable.” 328 F.3d at 1241 (quotations omitted). It held that, barring exigent\n\ncircumstances, no special need “renders the warrant requirement impracticable when\n\nsocial workers enter a home to remove a child.” Id. at 1242. Roska does not bear upon\n\nsocial workers searching and photographing a child at school for suspected child abuse.\n\n Finally, in Ferguson, the Supreme Court held that hospital workers’ reporting of\n\ndrug tests taken in a maternity ward to police could not qualify for the special needs\n\nexception because their conduct was too intertwined with law enforcement. Ferguson\n\nsays nothing about social workers searching and photographing a child at school\n\nbecause of suspected child abuse or whether such conduct is unacceptably entangled\n\nwith law enforcement to qualify for special needs analysis. Nor have we, in contrast to\n\nthe Fifth Circuit in Roe, ever held that a social worker search for suspected abuse\n\ncontext was too closely tied to law enforcement to qualify for the special needs\n\ndoctrine.\n\n Taken together, these four cases do not constitute clearly established law that the\n\nDoes suffered a Fourth Amendment violation because no warrant was obtained. They\n\n\n 25\n\nare not factually similar enough to apply to the Does’ claim. See White, 137 S. Ct. at\n\n552 (“[I]t is again necessary to reiterate the longstanding principle that “clearly\n\nestablished law should not be defined at a high level of generality . . . . [C]learly\n\nestablished law must be particularized to the facts of the case.”) (quotations and\n\ncitations omitted).\n\n ii. Other circuits\n\n Four circuits have rejected the special needs doctrine as an exception to the\n\n warrant requirement and two have approved it for searches like the one here. This\n\n does not amount to a “clearly established weight of authority from other courts,”\n\n Estate of Lockett, 841 F.3d at 1112 (quotations omitted), such that this “statutory or\n\n constitutional question [is] beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741\n\n (2011). Also, the circuits rejecting the special needs doctrine often did so based on\n\n facts distinguishable from this case—for instance, the search occurred at the child’s\n\n home, see, e.g., Good, 891 F.2d at 1092; Roe, 299 F.3d at 411-12, or involved taking\n\n the child out of school to a hospital, see Tenenbaum, 193 F.3d at 602.\n\n b. No showing of clearly established law on minimal Fourth Amendment\n reasonableness standards\n\n Despite the lack of law clearly showing the special needs doctrine did not apply\n\n to the search here, the Does could still attempt to show that Ms. Woodard’s search\n\n failed to meet clearly established minimal Fourth Amendment reasonableness\n\n standards applicable to special needs searches.\n 26\n\n When the Supreme Court first described the “special needs” exception in New\n\n Jersey v. T.L.O., 469 U.S. 325 (1985), it said a special needs search must satisfy\n\n minimum standards drawn from Terry v. Ohio, 392 U.S. 1 (1968):\n\n the legality of a search of a student should depend simply\n on the reasonableness, under all the circumstances, of the\n search. Determining the reasonableness of any search\n involves a twofold inquiry: first, one must consider\n “whether the . . . action was justified at its inception”;\n second, one must determine whether the search as actually\n conducted “was reasonably related in scope to the\n circumstances which justified the interference in the first\n place.”\n\nT.L.O., 469 U.S. at 341 (alteration in original) (citation omitted) (quoting Terry, 392\n\nU.S. at 20). As noted above, we also have measured reasonableness by balancing\n\ngovernment and private interests. See Dubbs, 336 F.3d at 1214.21\n\n i. Appellants’ failure to show clearly established law\n\n\n\n 21\n Although the Terry reasonableness determination and the interest-balancing\napproach are not identical, courts have recognized overlap in these tests. See, e.g.,\nJones v. Hunt, 410 F.3d 1221, 1228-29 (10th Cir. 2005) (assessing reasonableness\nunder Terry and quoting Wyoming v. Houghton, 526 U.S. 295, 299–300 (1999), for the\nproposition that courts may “evaluate the search or seizure under traditional standards\nof reasonableness by assessing, on the one hand, the degree to which it intrudes upon\nan individual’s privacy and, on the other, the degree to which it is needed for the\npromotion of legitimate governmental interests.”). See also Darryl H., 801 F.2d\n902-03 (adopting approach that blends Terry analysis with interest-balancing test:\n“The test of reasonableness under the Fourth Amendment is not capable of precise\ndefinition or mechanical application. In each case it requires a balancing of the need\nfor the particular search against the invasion of personal rights that the search entails.\nCourts must consider the scope of the particular intrusion, the manner in which it is\nconducted, the justification for initiating it, and the place in which it is conducted.”)\n(quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)).\n 27\n\n The Appellants offer almost no analysis to support their contention that the\n\nsearch violated clearly established minimal Fourth Amendment standards. Their\n\nopening brief devotes less than two pages to this issue. Although it cites several cases,\n\nincluding Dubbs, it does not provide any case analysis or otherwise begin to show how\n\nAppellants can meet the clearly established law burden to overcome qualified\n\nimmunity. Aplt. Br. at 36-37. Their Reply Brief fares no better. It mixes arguments\n\nand case cites about warrant requirements and the special needs exception with\n\narguments about reasonable searches. Aplt. Reply at 8-9. Other than parenthetical\n\ncase summaries, however, the Reply lacks case analysis or explanation as to why these\n\ncases clearly establish that Ms. Woodard’s search violated minimal Fourth Amendment\n\nprotections. The Reply complains that the Appellees have failed to provide case law to\n\nsupport the search and then states it is “not impermissibly shift[ing] the burden” to the\n\nAppellees. Id. at 10. But that is exactly what their argument would do. The\n\nAppellants’ failure to meet their burden should resolve the issue. The dissent attempts\n\nto do their work for them, but it does not show the law was clearly established, either.\n\n\n\n\n 28\n\n ii. The dissent\n\n We have shown that in December 2014 the law did not clearly establish that a\n\nwarrant was required to justify Ms. Woodard’s search. This is so because the law did not\n\nclearly establish that Ms. Woodard could not rely on the special needs exception to justify\n\nthe search. See McInerney, 791 F.3d at 1237 (performing clearly established analysis by\n\nexamining whether it was clearly established that an exception did not apply to the Fourth\n\nAmendment’s warrant requirement).\n\n Despite appearing to agree with the foregoing, the dissent contends the search\n\nviolated clearly established Fourth Amendment requirements even assuming the special\n\nneeds doctrine applied. We disagree for two related reasons—(1) the cases it relies on are\n\nfactually distinguishable from this case, and (2) Supreme Court precedent calls for factually\n\nsimilar cases to constitute clearly established law. We respond to the dissent to address\n\nwhether it was clearly established that the special needs doctrine’s reasonableness\n\nstandards were not met in this case.\n\n First, the Does must “identify a case where an officer acting under similar\n\ncircumstances . . . was held to have violated the Fourth Amendment.” White, 137 S. Ct. at\n\n552. The dissent relies on two cases that are materially different from this case. In Dubbs,\n\nthe purpose of the search was to identify physical and developmental impediments in all\n\n\n\n\n 29\n\nchildren to comply with federal Head Start program requirements.22 The state actors did\n\nnot attempt to justify the search in Dubbs based on the special need of detecting child\n\nabuse—just the opposite: “The nurses who administered the examinations, Strayhorn and\n\nBaker, testified that the exams were in conformity with standards for well-child\n\nexaminations and were not performed for the purpose of detecting child abuse.” 336 F.3d\n\nat 1200. In Safford, the purpose of the search was to prevent a student from distributing\n\nmedications to other students. 557 U.S. at 368. The purpose of Ms. Woodard’s search was\n\nto check for reported child abuse. Although, as the dissent notes, all three searches served\n\n“the state’s interest in child welfare,” Dissent Op. at 6, the purpose of Ms. Woodard’s\n\nsearch was different in kind from the others—to protect a child from reported abuse.\n\n In Dubbs, the nature of the search was an intrusive examination of the genitals of all\n\nchildren in the class, “separated only by partitions, so that it was possible for other children\n\nto see or hear portions of the examinations performed on their classmates.” Dubbs, 336\n\nF.3d at 1199. “The girls were asked to lay spread-legged on a table where the nurses\n\ninspected the girls’ labia; in some cases the nurses would ‘palpate,’ or touch, the genital\n\narea when a visual inspection was not adequate. Similarly, the nurses would palpate the\n\n\n 22\n The dissent, quoting Dubbs, states that “‘[t]he focus of the [Fourth]\nAmendment is . . . on the security of the person, not the identity of the searcher or the\npurpose of the search.’” Dissent Op. at 7 (quoting Dubbs, 336 F.3d at 1206). But this\nquotation from Dubbs addressed whether the physical examinations in that case were\n“searches” under the Fourth Amendment in the first place, not whether a given search\nwas reasonable under the Fourth Amendment.\n\n 30\n\nboys’ genitals to test for the presence of testes.” Id. at 1200. Accordingly, not only was the\n\nstate justification weaker in Dubbs than in this case, the search was far more invasive, far\n\nless private, and applied indiscriminately to the entire class. Dubbs held the search\n\nunconstitutional under “the ‘special needs’ balancing test,” id. at 1214, but the factors to\n\nbalance in this case are plainly different.\n\n In Safford, school officers searched a student suspected of distributing medications\n\nto other students. 557 U.S. at 368. The search, which involved removal of the student’s\n\nclothing and pulling aside her undergarments to expose private areas, id. at 369, was\n\ncomparable to this case, but the circumstances underlying the search were different. The\n\nstudent searched in Safford was suspected of harming others through drug distribution. Id.\n\nat 377. The child in this case was suspected of suffering abuse from a third party. The\n\nSafford Court asked whether the search was “‘reasonably related in scope to the\n\ncircumstances which justified the interference,’” id. at 375 (quoting T.L.O., 469 U.S. at\n\n341), and held that it was not, given that the school lacked facts that the alleged\n\nmedications were dangerous or that the student hid them “in her underwear.” Id. at 376.\n\nNeither Safford or Dubbs served to clearly establish that Ms. Woodard’s search of I.B. was\n\nnot reasonably related in scope to the circumstances—suspected child abuse. The dissent\n\ncorrectly states that the searches in all three cases involved the children’s “intimate areas,”\n\nbut the purpose and circumstances of the search for suspected child abuse in this case\n\n\n\n\n 31\n\ndiffered too much for Dubbs and Safford to have guided Ms. Woodard with clearly\n\nestablished law.\n\n Unlike the dissent, therefore, we do not see how a reasonable social worker in Ms.\n\nWoodard’s position would, based on these cases, know that her search of I.B. violated the\n\nrequirements for the special needs exception or the basic protections of the Fourth\n\nAmendment. “The precedent must be clear enough that every reasonable official would\n\ninterpret it to establish the particular rule the plaintiff seeks to apply.” Wesby, 138 S. Ct. at\n\n590; see also Mullenix, 136 S. Ct. at 308 (“A clearly established right is one that is\n\nsufficiently clear that every reasonable official would have understood that what he is\n\ndoing violates that right.”) (quotations omitted). As we have shown, the facts in this case\n\ndiffer markedly from the facts in the cases the dissent attempts to use for clearly established\n\nlaw.\n\n Second, the dissent’s reliance on these cases runs counter to the Supreme Court’s\n\nrepeated instruction that “clearly established law should not be defined at a high level of\n\ngenerality” but “must be particularized to the facts of the case.” White, 137 S. Ct. at 552\n\n(quotations omitted). The Court has stressed that the rule’s high “degree of specificity” is\n\n“especially important in the Fourth Amendment context.” Mullenix, 136 S. Ct. at 309. The\n\ndissent contends that the clearly established “particular rule” in December 2014, Dissent\n\nOp. at 6 (quoting Wesby, 138 S. Ct. at 590), was that a search “needed to be ‘justified at its\n\ninception and reasonably related in scope to the circumstances that justified the interference\n\n\n 32\n\nin the first place,’” id. (quoting Aplt. Br. at 36). But this minimal Fourth Amendment\n\nstandard applies to all searches. It is not particularized to the facts of this case. The dissent\n\ntherefore attempts “to define clearly established law at a high degree of generality”\n\ncontrary to the Supreme Court’s instructions. Kisela v. Hughes, 138 S. Ct. 1148, 1152\n\n(2018) (quotations omitted).23\n\n Even if Dubbs and Safford offer plausible authority to support a special needs\n\nFourth Amendment violation here, whether they supply clearly established law is at most\n\ndebatable, and to be clearly established, “‘existing precedent must have placed the statutory\n\nor constitutional question beyond debate.’” White, 137 S. Ct. at 551 (quoting Mullenix,\n\n136 S. Ct. at 308). “It is not enough that the rule is suggested by then-existing precedent.”\n\nWesby, 138 S. Ct. at 590. Qualified immunity lies where “none of the cases [the parties\n\n\n\n\n 23\n The Supreme Court has repeatedly emphasized for more than 35 years that\ngeneralized propositions of law are insufficient for clearly established law purposes.\nSee Anderson v. Creighton, 483 U.S. 635, 640 (1987) (Court of Appeals “misapplied\n[qualified immunity] principles” when its “discussion of qualified immunity consisted of\nlittle more than an assertion that a general right Anderson was alleged to have violated—\nthe right to be free from warrantless searches of one’s home unless the searching officers\nhave probable cause and there are exigent circumstances—was clearly established.”);\nBrosseau v. Haugen, 543 U.S. 194, 198-99 (2004) (per curiam) (Court of Appeals was\nmistaken in using “the general proposition that use of force is contrary to the Fourth\nAmendment if it is excessive under objective standards of reasonableness” for clearly\nestablished purposes because the proposition is “cast a high level of generality” (quotations\nomitted)).\n\n 33\n\nand the dissent rely on] squarely governs the case here.” Mullenix, 136 S. Ct. at 309\n\n(brackets and quotations omitted).24\n\n To the extent the Does attempt to argue that this is the rare alleged violation of\n\nminimal Fourth Amendment standards that is so “obvious” that a factually similar case\n\nis unnecessary for the clearly established law standard,25 see Aplt. Reply Br. at 6\n\n(citing Hope, 536 U.S. at 741), this argument fails. “[T]his is not an obvious case\n\nwhere a body of relevant case law is not needed.” Wesby, 138 S. Ct. at 591 (quotations\n\nomitted).\n\n\n\n\n 24\n The dissent also contends that Safford clearly establishes that “the\ncategorically extreme intrusiveness” of a body search “requires some justification in\nsuspected facts, general background possibilities fall short.” Dissent Op. at 7 (quoting\nSafford, 575 U.S. at 376). But the Does and the dissent do not show that under the\ncircumstances in this case, a reasonable social worker in Ms. Woodard’s shoes would\nhave known her conduct fell short. As alleged in the First Amended Complaint, the\nreport that I.B. was being abused contained specifics—“little bumps on I.B.’s face, a bruise\nabout the size of a nickel on her neck, a small red mark on her lower back, two small cuts\non her stomach, and bruised knees.” Aplt. App., Vol I at 15 ¶ 36. Combined with a report\nof child abuse, a reasonable social worker could understand these to be “suspected facts,”\nnot “general background possibilities.” To the extent Appellants pled, as the dissent\nsuggests, that “Ms. Woodard was never aware of facts that could have justified such an\nintrusive search of a four-year-old girl,” Dissent Op. at 9, such an allegation is both\nconclusory and contradicted by other allegations in the First Amended Complaint.\n 25\n See, e.g., McCoy v. Meyers, 887 F.3d 1034, 1053 (10th Cir. 2018) (“Even\nassuming that our previous cases were not sufficiently particularized to satisfy the\nordinary clearly established law standard, ours is ‘the rare obvious case, where the\nunlawfulness of the [state actor’s] conduct is sufficiently clear even though existing\nprecedent does not address similar circumstances.’” (quoting Wesby, 138 S. Ct. at 590);\nsee also White, 137 S. Ct. at 552; Brosseau, 543 U.S. at 199.\n\n 34\n\n * * * *\n\n In summary, the Does have not shown that Ms. Woodard’s search violated clearly\n\nestablished Fourth Amendment law. We affirm the district court’s conclusion that the\n\nDefendants, including supervisors, were entitled to qualified immunity and that the Fourth\n\nAmendment claims should be dismissed. 26\n\n B. Fourteenth Amendment Claims\n\n This section addresses the two substantive due process claims for violation of\n\nparental rights and interference with familial association. We describe our standard of\n\nreview and provide legal background on the facts required to allege these types of\n\nclaims and how those facts must “shock the conscience.” We then examine whether\n\nthe Does’ complaint states a plausible claim under these standards and, like the district\n\ncourt, find it lacking.\n\n1. Standard of Review\n\n We review de novo a district court’s Rule 12(b)(6) dismissal of a complaint for\n\nfailure to state a claim. Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir.\n\n\n\n\n 26\n In a different circuit with more developed law, the analysis of the “clearly\nestablished” prong of qualified immunity might have been different. As noted above,\nwe do not address the first step of qualified immunity analysis—whether the\nDefendants violated the Fourth Amendment.\n We note that El Paso County DHS later instituted a policy under which social\nworkers must ask parental permission or obtain a court order before searching and\nphotographing children for suspected abuse. Aplt. App., Vol. II at 7.\n\n 35\n\n2002). To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must plead\n\nsufficient factual allegations “to state a claim to relief that is plausible on its face.”\n\nBell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible\n\n“when the plaintiff pleads factual content that allows the court to draw the reasonable\n\ninference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,\n\n556 U.S. 662, 678 (2009). Dismissal under Rule 12(b)(6) is appropriate if the\n\ncomplaint alone is legally insufficient to state a claim. See Peterson v. Grisham, 594\n\nF.3d 723, 727 (10th Cir. 2010).\n\n Under our de novo review, “[a]ll well-pleaded facts, as distinguished from\n\nconclusory allegations, must be taken as true,” and we must liberally construe the\n\npleadings and make all reasonable inferences in favor of the non-moving party. Ruiz v.\n\nMcDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002) (quotations omitted).\n\n2. Legal Background\n\n The following describes the parental right to direct medical care and the right of\n\nfamilial association. To state a claim for either, the plaintiff must show that the alleged\n\nconduct “shocks the conscience.”\n\n a. Substantive due process claims—“shocks the conscience”\n\n In Halley v. Huckaby, 902 F.3d 1136 (10th Cir. 2018), we recently recounted\n\nthat the Supreme Court recognizes two types of substantive due process claims: (1)\n\nclaims that the government has infringed a “fundamental” right, see, e.g., Washington\n\n\n 36\n\nv. Glucksberg, 521 U.S. 702, 721-22 (1997) (assessing asserted right to assisted\n\nsuicide); and (2) claims that government action deprived a person of life, liberty, or\n\nproperty in a manner so arbitrary it shocks the judicial conscience, see, e.g., City of\n\nSacramento v. Lewis, 523 U.S. 833, 846 (1998) (examining a high-speed police chase).\n\nHalley, 902 F.3d at 1153. “[W]e apply the fundamental-rights approach when the\n\nplaintiff challenges legislative action, and the shocks-the-conscience approach when\n\nthe plaintiff seeks relief for tortious executive action.” Id. The Does’ substantive due\n\nprocess claims—violation of the parental right to direct medical care and to familial\n\nassociation—challenge executive action, id. at 1154, and therefore are “shocks the\n\nconscience” claims.\n\n Executive action that shocks the conscience requires much more than\n\nnegligence. Moore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir. 2006). Even the actions\n\nof a reckless official or one bent on injuring a person do not necessarily shock the\n\nconscience. Id. “Conduct that shocks the judicial conscience” is “deliberate\n\ngovernment action that is arbitrary and unrestrained by the established principles of\n\nprivate right and distributive justice.” Hernandez v. Ridley, 734 F.3d 1254, 1261 (10th\n\nCir. 2013) (quotations omitted). “To show a defendant’s conduct is conscience\n\nshocking, a plaintiff must prove a government actor arbitrarily abused his authority or\n\nemployed it as an instrument of oppression.” Id. (brackets omitted) (quotations\n\nomitted). “The behavior complained of must be egregious and outrageous.” Id.; see\n\n\n 37\n\nBreithaupt v. Abram, 352 U.S. 432, 435 (1957) (“We set aside the conviction because\n\nsuch conduct ‘shocked the conscience’ and was so ‘brutal’ and ‘offensive’ that it did\n\nnot comport with traditional ideas of fair play and decency.”) The Supreme Court\n\nfound conscience-shocking behavior in a case involving a sheriff’s application of\n\nstomach pumping to force vomiting, Rochin v. California, 342 U.S. 165, 172 (1952).\n\nThis Circuit recently found a social worker’s various actions that led to physical and\n\nsexual abuse of a minor shocked the conscience. T.D. v. Patton, 868 F.3d 1209, 1213\n\n(10th Cir. 2017).\n\n b. Parental right to direct child’s medical care\n\n The Fourteenth Amendment protects the right of parents to make decisions\n\n“concerning the care, custody, and control of their children.” Troxel v. Granville, 530\n\nU.S. 57, 66 (2000). This right provides “some level of protection for parents’ decisions\n\nregarding their children’s medical care.” PJ ex rel Jensen v. Wagner, 603 F.3d 1182,\n\n1197 (10th Cir. 2010). The right to direct a child’s medical care is not absolute.\n\n“[W]hen a child’s life or health is endangered by her parents’ decisions, in some\n\ncircumstances a state may intervene without violating the parents’ constitutional\n\nrights.” Id. at 1198. As noted above, a violation of this right must be conscience\n\nshocking.\n\n\n\n\n 38\n\n c. Right of familial association\n\n The government’s “forced separation of parent from child, even for a short time,\n\nrepresents a serious impingement” on a parent’s substantive due process right to\n\nfamilial association. Jensen, 603 F.3d at 1199 (quotations omitted). A familial\n\nassociation claim must be based on allegations of abusive government authority. See\n\nGriffin v. Strong, 983 F.2d 1544, 1547 (10th Cir. 1993); see also Jensen, 603 F.3d at\n\n1198-99; J.B. v. Washington County, 127 F.3d 919, 927 (10th Cir. 1997). A parent\n\nmust allege “intent to interfere” with this right—that is, the state actor must have\n\ndirected conduct at the familial relationship “with knowledge that the statements or\n\nconduct will adversely affect that relationship.” Lowery v. City of Riley, 522 F.3d\n\n1086, 1092 (10th Cir. 2008). Again, the right is not absolute, but must be weighed\n\nagainst the state’s interest in protecting a child’s health and safety. See Youngberg v.\n\nRomeo, 457 U.S. 307, 320-21 (1982); see also Jensen, 603 F.3d at 1199; Lowery, 522\n\nF.3d at 1092. In conducting this balancing, courts consider the severity of the\n\ninfringement on the protected relationship, the need for defendants’ conduct, and\n\npossible alternative courses of action. See Griffin, 983 F.2d at 1548.27\n\n\n 27\n In Halley, we explained that, the two-part test “simply describes the kind of\nbehavior we find to shock the conscience in this context.” 902 F.3d at 1154. “Namely,\nit shocks the conscience when: (1) the officials intended to deprive the plaintiff of a\nprotected relationship with a family member, and (2) the officials’ intrusion into the\nrelationship was not warranted by state interests in the health and safety of the family\nmember. Together, the facts alleged by the plaintiff on these points must meet the\nshocks-the-conscience standard.” Id. (footnote and citation omitted).\n 39\n\n To state a claim, Ms. Doe must have alleged that (1) the Defendants intended to\n\ndeprive her of her protected relationship with her daughter, see Estate of B.I.C. v.\n\nGillen, 710 F.3d 1168, 1175 (10th Cir. 2013); and that (2) the Defendants either unduly\n\nburdened Ms. Doe’s protected relationship, see Jensen, 603 F.3d at 1199, or effected\n\nan “unwarranted intrusion” into that relationship, Trujillo v. Bd. of Cty. Comm’rs, 768\n\nF.2d 1186, 1190 (10th Cir. 1985).\n\n3. Analysis\n\n a. Right to direct medical care\n\n Ms. Doe’s allegations on the right to control medical treatment do not “shock the\n\nconscience.” To be conscience-shocking, Ms. Woodard’s (or her supervisors’)\n\nbehavior had to be so “arbitrary” to be “as an instrument of oppression,” “egregious,”\n\n“outrageous,” and “so brutal and offensive” that it runs afoul of “traditional ideas of\n\nfair play and decency.” Hernandez, 734 F.3d at 1261; Breithaupt, 352 U.S. at 435.\n\n The allegations did not allege this level of severity. They did not allege\n\ninterference with Ms. Doe’s control of I.B.’s medical treatment other than Ms.\n\nWoodard’s performing an initial examination to determine whether I.B. had been\n\nabused. To the extent this was a “medical decision,” it hardly rose to the level of what\n\nprecedent requires for “shocks the conscience.”\n\n\n\n\n 40\n\n b. Familial association\n\n Ms. Doe’s familial association allegations similarly did not “shock the\n\nconscience” under Halley. We consider whether the complaint alleged (1) a\n\ndeprivation of Ms. Doe’s protected relationship with I.B. that (2) “unduly burdened”\n\nthat relationship in a manner that was “egregious,” “outrageous,” “unrestrained,”\n\n“brutal,” and a display of arbitrary power being used “as an instrument of oppression.”\n\nMoore, 438 F.3d at 1040; Hernandez, 734 F.3d at 1261; Breithaupt, 352 U.S. at 435.\n\n Again, the complaint did not allege this level of severity. The Does argue in\n\ntheir brief that their complaint should be read to allege that Ms. Woodard intended to\n\nseparate I.B. from her mother to conduct an examination without the mother present.\n\nBut even if the complaint could be read this way, it still needed to allege an intended\n\ndeprivation or suspension of the parent-child relationship that shocks the conscience.\n\nSee, e.g., Thomas v. Kaven, 765 F.3d 1183, 1195-96 (10th Cir. 2014) (complaint\n\nsufficiently stated claim for § 1983 familial association claim where it was alleged\n\nDefendant, upon suspecting domestic sexual abuse, placed a medical hold on a child to\n\nprevent parents from taking the child home from the hospital). Here, the complaint\n\nlacked allegations that Ms. Woodard’s motivation was anything other than to\n\ninvestigate potential child abuse.\n\n Moreover, the search happened during school hours when I.B.’s mother would\n\nnot otherwise have been with her. To the extent I.B. was separated from her mother\n\n\n 41\n\nduring a time when she would have wanted her mother to be present, this is a far cry\n\nfrom the substantial separation required in other cases. See, e.g., Thomas, 765 F.3d at\n\n1188-90, 1197-98 (Fourteenth Amendment claim stated where plaintiff’s daughter\n\nallegedly separated coercively for weeks in mental health ward); Roska, 328 F.3d at\n\n1238-39, 1246 (familial association Fourteenth Amendment claim stated where child\n\nwas removed from home and placed under protective care for a week).\n\n * * * *\n\n In summary, the Does have failed to state a Fourteenth Amendment substantive due\n\nprocess claim for violation of parental rights or interference with familial association\n\nagainst the Defendants.\n\n III. CONCLUSION\n\n We affirm the district court’s (1) dismissal of the I.B.’s Fourth Amendment\n\nclaims under qualified immunity, and (2) dismissal of the Does’ Fourteenth\n\nAmendment claims for failure to state a claim.28\n\n\n\n\n 28\n We also affirm the district court’s denial of the Does’ motion for leave to\namend their complaint. Amendment would have been futile given this opinion’s\nanalysis of clearly established law. See Jefferson Cty. Sch. Dist. No. R-1 v. Moody’s\nInv’rs Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999) (“Although [Federal Rule of\nCivil Procedure] 15(a) provides that leave to amend shall be given freely, the district\ncourt may deny leave to amend where amendment would be futile.”).\n\n 42\n\nNo. 18-1066, Doe v. Woodard\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Jane DOE; I.B., Plaintiffs - Appellants, v. April WOODARD, in Her Individual Capacity; Christina Newbill, in Her Individual Capacity; Shirley Rhodus, in Her Individual Capacity; Richard Bengtsson, in His Individual Capacity; El Paso County Board of County Commissioners, Defendants - Appellees, and Reggie Bicha, in His Official Capacity as Executive Director of the Colorado Department of Human Services; Julie Krow, in Her Official Capacity as Executive Director of the El Paso County Department of Human Services, Defendants. Parental Rights Foundation; National Center for Housing and Child Welfare; National Coalition for Child Protection Reform ; Parent Guidance Center; Mark Freeman; Pacific Justice Institute, Amici Curiae.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-01-03\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS January 3, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\nJANE DOE; I.B.,\\n\\n Plaintiffs - Appellants,\\n\\nv. No. 18-1066\\n\\nAPRIL WOODARD, in her individual\\ncapacity; CHRISTINA NEWBILL, in her\\nindividual capacity; SHIRLEY RHODUS,\\nin her individual capacity; RICHARD\\nBENGTSSON, in his individual capacity;\\nEL PASO COUNTY BOARD OF\\nCOUNTY COMMISSIONERS,\\n\\n Defendants - Appellees,\\n\\nand\\n\\nREGGIE BICHA, in his official capacity as\\nExecutive Director of the Colorado\\nDepartment of Human Services; JULIE\\nKROW, in her official capacity as\\nExecutive Director of the El Paso County\\nDepartment of Human Services,\\n\\n Defendants.\\n_______________________\\n\\nPARENTAL RIGHTS FOUNDATION;\\nNATIONAL CENTER FOR HOUSING\\nAND CHILD WELFARE; NATIONAL\\nCOALITION FOR CHILD PROTECTION\\nREFORM; PARENT GUIDANCE\\nCENTER; MARK FREEMAN; PACIFIC\\nJUSTICE INSTITUTE,\\n\\n Amici Curiae.\\n\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Colorado\\n (D.C. No. 1:15-CV-01165-KLM)\\n _________________________________\\n\\nTheresa Lynn Sidebotham, (Jessica Ross with her on the brief), of Telios Law PLLC,\\nMonument, Colorado, for Plaintiffs - Appellants.\\n\\nKenneth R. Hodges, Senior Assistant County Attorney (Diana K. May, First Assistant\\nCounty Attorney, with him on the brief), Colorado Springs, Colorado, for Defendants -\\nAppellees.\\n\\nKevin T. Snider, Pacific Justice Institute, Sacramento, California, filed an Amicus Curiae\\nbrief for Pacific Justice, in support of Appellants.\\n\\nDarren A. Jones and James R. Mason, III, Purcellville, Virginia, Martin Guggenheim and\\nCarolyn Kubitschek, Alexandria, Virginia, Diane Redleaf, College Park, Maryland, and\\nMark Freeman, Media, Pennsylvania, filed an Amici Curiae brief for Parental Rights\\nFoundation, National Center for Housing and Child Welfare, National Coalition for Child\\nProtection Reform, Parent Guidance Center, and Mark Freeman, Esq., in support of\\nAppellants.\\n _________________________________\\n\\nBefore BRISCOE, LUCERO, and MATHESON, Circuit Judges.\\n _________________________________\\n\\nMATHESON, Circuit Judge.\\n _________________________________\\n\\n I.B., a minor child, and her mother, Jane Doe (collectively, “Does”), claim that\\n\\nApril Woodard, a caseworker from the El Paso County Department of Human Services\\n\\n(“DHS”), a state agency, wrongfully searched I.B. at the Head Start preschool program\\n\\nin Colorado Springs. Without consent or a warrant, Ms. Woodard partially undressed\\n\\n\\n\\n 2\\n\\nI.B., performed a visual examination for signs of abuse, then photographed I.B.’s\\n\\nprivate areas and partially unclothed body.\\n\\n In their lawsuit, the Does alleged that Ms. Woodard and other DHS officials\\n\\nviolated the Fourth Amendment’s prohibition on unreasonable searches and the\\n\\nFourteenth Amendment’s protection against undue interference with parental rights and\\n\\nwith familial association. The Defendants moved to dismiss.1 The district court\\n\\ngranted the motion, holding that qualified immunity precludes the Fourth Amendment\\n\\nunlawful search claim and that the complaint failed to state a Fourteenth Amendment\\n\\nclaim.\\n\\n The Does appeal these rulings and the district court’s denial of leave to amend\\n\\ntheir complaint. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.\\n\\n I. BACKGROUND\\n\\n A. Factual Background\\n\\n In reviewing the grant of a motion to dismiss, we accept the allegations in the\\n\\ncomplaint as true and draw all reasonable inferences in favor of the non-moving party—\\n\\nhere, the Does. Mayfield v. Bethards, 826 F.3d 1252, 1255, 1258 (10th Cir. 2016).\\n\\n\\n\\n\\n 1\\n The Does sued six defendants, who are identified in the procedural history\\nsection below.\\n\\n 3\\n\\n In December 2014, I.B. was attending preschool at the Head Start Program in\\n\\nColorado Springs.2 An anonymous source reported to DHS possible signs of abuse on\\n\\nI.B.’s body, including bumps on her face, a nickel-sized bruise on her neck, a small red\\n\\nmark on her lower back, two small cuts on her stomach, and bruised knees. DHS\\n\\ncaseworker April Woodard responded to the report, arriving to take I.B. to the nurse’s\\n\\noffice.3 Allegedly acting on instructions from DHS supervisor Christina Newbill, Ms.\\n\\nWoodard removed I.B.’s clothing and visually inspected and photographed I.B.’s buttocks,\\n\\nstomach, and back using a county-issued cell phone.4\\n\\n The Does alleged that the undressing and photographing were “executed under an\\n\\nunwritten, but well-established county-wide policy or custom encouraging the practice,\\n\\noften without first obtaining parental consent or a court order.” Aplt. Br. at 5 (citing Aplt.\\n\\n\\n\\n\\n 2\\n Pacific Justice’s amicus brief explains that Head Start is “a federally funded\\npreschool in which children engage in a course of age-appropriate studies conducted by\\na teacher. Although not a K-12 public school, Head Start primarily functions as an\\neducational institution for very young children.” Pacific Justice Amicus Br. at 2\\n(footnote omitted). The “program meets on public school campuses.” Id.\\n\\n 3\\n This was the not DHS’s first investigation regarding I.B. The Does alleged\\n that, between 2012 and 2014, DHS investigated their home “around half a dozen\\n times, based on false reports that I.B. was being abused.” Am. Compl. ¶ 15. One\\n investigation was based on a report that I.B. had marks resembling a hand print on\\n her bottom and lower-back bruising. DHS visually examined I.B. with her clothing\\n removed. DHS closed the investigation, finding in January 2014 the report was\\n unfounded. Id. ¶¶ 24-32.\\n 4\\n According to Defendants, “the school’s health paraprofessional” assisted Ms.\\nWoodard. Aplee. Br. at 7.\\n 4\\n\\nApp., Vol. I at 21-28). They further alleged that Richard Bengtsson, then Executive\\n\\nDirector of the El Paso County DHS, issued the policy, and the director of Ms. Woodard’s\\n\\ndepartment, Shirley Rhodus, implemented it.\\n\\n The following day, Ms. Woodard visited Ms. Doe at home. DHS did not suspect\\n\\nher of abuse, and she cooperated with the investigation. Ms. Woodard did not inform\\n\\nMs. Doe that she had inspected and photographed I.B. in a state of partial undress. The\\n\\ncase was closed as unfounded.\\n\\n After DHS closed the case, I.B. told her mother about the incident, saying she\\n\\nhoped she would not see Ms. Woodard again because “I don’t like it when she takes all\\n\\nmy clothes off.” Aplt. App., Vol. I at 17. I.B. later said to Ms. Doe that Ms. Woodard\\n\\nhad taken photos of her against her will. Aplt. App., Vol. I at 18. When Ms. Doe\\n\\napproached Ms. Woodard about her daughter’s accusations, Ms. Woodard at first\\n\\ndenied them. Two months later, she reversed course and admitted that she did the\\n\\ninspection and took photographs. Ms. Woodard told Ms. Doe that a child abuse\\n\\naccusation and investigation takes priority over the mother’s parental rights.\\n\\n B. Procedural History\\n\\n The Does sued under 42 U.S.C. § 1983, alleging violation of I.B.’s Fourth\\n\\nAmendment rights and violations of I.B.’s and Ms. Doe’s Fourteenth Amendment\\n\\n\\n\\n\\n 5\\n\\nrights.5 The Fourth Amendment claims were based on both the visual inspection and\\n\\nthe photographs; the Fourteenth Amendment claims only on the inspection. In addition\\n\\nto Ms. Woodard, the Does named as defendants Ms. Woodard’s supervisors, Ms.\\n\\nNewbill and Ms. Rhodus; Mr. Bengtsson, Executive Director of El Paso County DHS;\\n\\nReggie Bicha, Executive Director of Colorado DHS; and the El Paso Board of County\\n\\nCommissioners (“BOCC”). The Does sought damages and prospective relief against a\\n\\n“statewide and local policy and custom” encouraging “strip searching children\\n\\nwhenever injuries are alleged.” Aplt. App., Vol. I at 40. The Defendants moved to\\n\\ndismiss based on qualified immunity and failure to state a claim.\\n\\n1. Dismissal of Fourth Amendment Claims\\n\\n A magistrate judge6 concluded Ms. Woodard and her supervisors were entitled\\n\\nto qualified immunity on the Fourth Amendment claim7 and dismissed the claim\\n\\nwithout prejudice. When the Does sought to file an amended complaint, the court\\n\\nrejected the request on futility grounds and dismissed the claim with prejudice.\\n\\n\\n\\n\\n 5\\n Because I.B. is a minor, Ms. Doe brought her claims for her. Although we\\nrefer to “the Does” when discussing the Fourth and Fourteenth Amendment claims, the\\nFourth Amendment claims are solely on behalf of I.B.\\n 6\\n The parties agreed to have all proceedings in the case decided by a magistrate\\njudge. See 28 U.S.C. § 636(c). We will refer to the magistrate judge’s court as the\\n“district court.”\\n 7\\n Doe et al. v. Woodard et al., No. 1:15-CV-01165-KLM (D. Colo. Sept. 30,\\n2016).\\n 6\\n\\n a. Ms. Woodard and Ms. Newbill\\n\\n The district court dismissed the Fourth Amendment claim against Ms. Woodard\\n\\nand Ms. Newbill because the law was not so “clearly established” as to “give\\n\\nDefendants fair warning that the taking photographs of portions of I.B.’s unclothed\\n\\nbody required a warrant.” Dist. Court Op. at 16.\\n\\n To the extent the Fourth Amendment claim was based on the Defendants’ failure\\n\\nto show that the “special needs” doctrine justified the search, the district court\\n\\nrecognized that a special needs search comports with the Fourth Amendment only if it\\n\\nis “justified at its inception” and “reasonably related in scope to the circumstances\\n\\nwhich justified interference in the first place.” Id. at 19 (quotations omitted). But, the\\n\\ndistrict court concluded, the Does’ complaint “lack[ed] allegations” the search was\\n\\nunjustified at its inception or was improper in scope. Id.8\\n\\n The district court dismissed the Does’ Fourth Amendment claim without\\n\\nprejudice.\\n\\n b. Ms. Rhodus and Mr. Bengtsson\\n\\n The district court dismissed the Fourth Amendment § 1983 supervisory liability\\n\\nclaim against Ms. Rhodus and Mr. Bengtsson. Because qualified immunity shielded\\n\\ntheir supervisees, Ms. Woodard and Ms. Newbill, it also shielded them. Id. at 22. The\\n\\n\\n 8\\n The district court also said Defendants’ conduct was objectively reasonable\\nbecause they complied with a Colorado statute authorizing photography in cases of\\nsuspected child abuse. Id. (citing Colo. Rev. Stat. § 19-3-306).\\n 7\\n\\ncourt also dismissed the claim for prospective relief against Ms. Rhodus and Mr.\\n\\nBengtsson, which demanded safeguards on storing photographs obtained in future\\n\\nsearches, because it was based only on a “mere potential violation.” Id. at 23-24.\\n\\n2. Dismissal of Fourteenth Amendment Claims\\n\\n a. Ms. Woodard and Ms. Newbill\\n\\n The district court dismissed, for failure to state a claim, the Does’ substantive\\n\\ndue process claims under the Fourteenth Amendment for violation of the parental right\\n\\nto direct medical care and of the right to familial association.\\n\\n i. Right to direct medical care\\n\\n The district court dismissed the parental rights claim, stating that (1) the visual\\n\\nexam of a child was not “essentially a medical procedure”; (2) the complaint did not\\n\\nallege that the exam “affected [I.B’s mother’s] right to direct [I.B.’s] medical care”;\\n\\nand (3) the complaint did not allege that the exam caused any “interference with\\n\\n[I.B.’s] medical treatment.” Id. at 31 (quotations omitted).\\n\\n ii. Right to familial association\\n\\n The district court dismissed the familial association claims, concluding the Does\\n\\ndid not sufficiently plead that (1) the Defendants intended to separate I.B. from her\\n\\nmother or that (2) the Defendants knew their conduct would adversely affect the\\n\\nfamilial relationship. Id.\\n\\n b. Ms. Rhodus, Mr. Bengtsson, and Mr. Bicha\\n\\n\\n 8\\n\\n The district court also dismissed the Fourteenth Amendment supervisory claims\\n\\nagainst Ms. Rhodus and Mr. Bengtsson and the official capacity claims against Mr.\\n\\nBengtsson and Mr. Bicha because the complaint failed to allege an underlying violation\\n\\nof the Fourteenth Amendment.9\\n\\n3. Denial of Leave to Amend and Dismissal with Prejudice\\n\\n When the Does attempted to amend their complaint, the district court denied the\\n\\nrequest, stating that the Does “have not addressed the Court’s determination that\\n\\nDefendants were entitled to qualified immunity because the law was not clearly\\n\\nestablished with respect to whether Defendants needed a warrant in order to search the\\n\\nminor Plaintiff. In the absence of any case clearly establishing Plaintiffs’ rights as\\n\\nasserted, the Court cannot find that Defendants knowingly violated the law, even\\n\\nassuming that they committed a constitutional violation.” Aplt. App., Vol. II at 72-73\\n\\n(citations and quotations omitted).10\\n\\n\\n\\n\\n 9\\n The Does do not appeal the dismissal of the Fourteenth Amendment official-\\ncapacity claims.\\n 10\\n The Does sued the BOCC for its role in the same alleged violations under the\\nFourth and Fourteenth Amendments. The district court dismissed these claims because\\nthe BOCC is a county rather than state entity and lacked final policymaking control.\\nThis ruling is not on appeal.\\n\\n 9\\n\\n The district court also dismissed the Fourth and Fourteenth amendment claims\\n\\nwith prejudice.11\\n\\n\\n\\n\\n 11\\n The claim for prospective relief against Mr. Bengtsson and Mr. Bicha in their\\nofficial capacities survived the motion to dismiss. Limited discovery was granted\\nregarding standing on the claim, but it was later dismissed by stipulation of the parties.\\nNo prospective claim against Ms. Rhodus and Mr. Bengtsson in their official capacity\\nis part of this appeal.\\n 10\\n\\n II. DISCUSSION\\n\\n Our discussion reviews (A) the district court’s qualified immunity dismissal of\\n\\nthe Does’ Fourth Amendment claims and (B) its dismissal of their Fourteenth\\n\\nAmendment claims for failure to state a claim. We affirm in both instances.\\n\\n A. Fourth Amendment Claims\\n\\n This section provides background on the standard of review; qualified immunity\\n\\nlaw; Fourth Amendment search requirements, with emphasis on the special needs\\n\\ndoctrine; and analysis of whether the Does have shown there was clearly established\\n\\nlaw at the time of the search to support their claim. We conclude they have not shown\\n\\nclearly established law that the special needs doctrine could not support the search in\\n\\nthis case. They therefore have not shown that a warrant clearly was required.12\\n\\n1. Standard of Review\\n\\n We review de novo the grant of a motion to dismiss under Rule 12(b)(6) due to\\n\\nqualified immunity. Estate of Lockett v. Fallin, 841 F.3d 1098, 1106 (10th Cir. 2016).\\n\\n\\n 12\\n This approach is similar to the one we followed in McInerney v. King, 791 F.3d\\n1224 (10th Cir. 2015). In that case, the plaintiff brought a § 1983 action alleging a Fourth\\nAmendment violation based on the defendant police officer’s warrantless search of her\\nhome. We reversed the district court’s grant of qualified immunity. As in our case, the\\nsearch was conducted without a warrant, and the defendant relied on an exception to the\\nwarrant requirement to contest the Fourth Amendment claim. After reviewing the existing\\ncase law, we concluded it was clearly established that the exigent circumstances exception\\ndid not apply and therefore the defendant was not entitled to qualified immunity. Id. at\\n1228. Here, after reviewing existing case law, the opinion concludes that the law was not\\nclearly established that the special needs exception did not apply, and therefore the\\ndefendants were entitled to qualified immunity.\\n 11\\n\\n“At [the motion to dismiss] stage, it is the defendant’s conduct as alleged in the\\n\\ncomplaint that is scrutinized for ‘objective legal reasonableness.’” Behrens v.\\n\\nPelletier, 516 U.S. 299, 309 (1996).\\n\\n2. Legal Background\\n\\n a. Qualified immunity\\n\\n Under 42 U.S.C. § 1983, a person acting under color of state law who “subjects,\\n\\nor causes to be subjected, any citizen of the United States . . . to the deprivation of any\\n\\nrights, privileges, or immunities secured by the Constitution and laws, shall be liable to\\n\\nthe party injured . . . .” “Individual defendants named in a § 1983 action may raise a\\n\\ndefense of qualified immunity, which shields public officials from damages actions\\n\\nunless their conduct was unreasonable in light of clearly established law.” Estate of\\n\\nBooker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014) (citation, ellipsis, and quotations\\n\\nomitted).\\n\\n “[Q]ualified immunity protects ‘all but the plainly incompetent or those who\\n\\nknowingly violate the law.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting\\n\\nMalley v. Briggs, 475 U.S. 335, 341 (1986)). A motion to dismiss based on qualified\\n\\nimmunity imposes the burden on the plaintiff to show “both that [1] a constitutional\\n\\nviolation occurred and [2] that the constitutional right was clearly established at the\\n\\ntime of the alleged violation.” Green v. Post, 574 F.3d 1294, 1300 (10th Cir. 2009)\\n\\n(quotations omitted). A court evaluating qualified immunity is free to “exercise [its]\\n\\n\\n 12\\n\\nsound discretion in deciding which of the two prongs of the qualified immunity\\n\\nanalysis should be addressed first in light of the circumstances in the particular case at\\n\\nhand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).\\n\\n A constitutional right is clearly established if it is “sufficiently clear that every\\n\\nreasonable official would have understood that what he is doing violates that right.”\\n\\nMullenix, 136 S. Ct. at 308 (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).\\n\\nThe plaintiff must show there is a “Supreme Court or Tenth Circuit decision on point,\\n\\nor the clearly established weight of authority from other courts must have found the\\n\\nlaw to be as the plaintiff maintains.” Klen v. City of Loveland, 661 F.3d 498, 511 (10th\\n\\nCir. 2011) (quotations omitted). Generally, “existing precedent must have placed the\\n\\nstatutory or constitutional question beyond debate” for a right to be clearly established.\\n\\nThe Estate of Lockett, 841 F.3d at 1107 (quoting Mullenix, 136 S. Ct. at 308).\\n\\n There “need not be a case precisely on point.” Redmond v. Crowther, 882 F.3d\\n\\n927, 935 (10th Cir. 2018). But “it is a ‘longstanding principle that clearly established\\n\\nlaw should not be defined at a high level of generality.’” Id. (quoting White v. Pauly,\\n\\n137 S. Ct. 548, 552 (2017) (per curiam)); see also District of Columbia v. Wesby, 138\\n\\nS. Ct. 577, 590 (2018) (“The clearly established standard . . . requires a high degree of\\n\\nspecificity.” (quotations omitted)). “[T]he salient question . . . is whether the state of\\n\\nthe law . . . gave [the defendants] fair warning that their alleged treatment of [the\\n\\nplaintiffs] was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).\\n\\n\\n 13\\n\\n “[G]eneral statements of the law are not inherently incapable of giving fair and\\n\\nclear warning to officers, but in the light of pre-existing law the unlawfulness must be\\n\\napparent.” White, 137 S. Ct. at 552 (citations and quotations omitted). “[T]here can be\\n\\nthe rare obvious case, where the unlawfulness of the officer’s conduct is sufficiently\\n\\nclear even though existing precedent does not address similar circumstances.” Wesby,\\n\\n138 S. Ct. at 590 (quotations omitted).\\n\\n For supervisory liability, “[p]ersonal participation is an essential allegation in a\\n\\n1983 claim.” Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). A\\n\\nsupervisor cannot be held vicariously liable for the constitutional violations of\\n\\nsubordinates. See Serna v. Colo. Dep’t of Corr., 455 F.3d 1146, 1151 (10th Cir. 2003)\\n\\n(“Supervisors are only liable under § 1983 for their own culpable involvement in the\\n\\nviolation of a person’s constitutional rights.”) “[D]irect participation,” however, “is\\n\\nnot necessary.” Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir. 1990) (quotations\\n\\nomitted). “The requisite causal connection is satisfied if the defendant set in motion a\\n\\nseries of events that the defendant knew or reasonably should have known would cause\\n\\nothers to deprive the plaintiff of her constitutional rights.” Id. (quotations omitted).\\n\\n“[T]he establishment or utilization of an unconstitutional policy or custom can serve as\\n\\nthe supervisor’s affirmative link to the constitutional violation . . . . Where an official\\n\\nwith policymaking authority creates, actively endorses, or implements a policy which\\n\\nis constitutionally infirm, that official may face personal liability for the violations\\n\\n\\n 14\\n\\nwhich result from the policy’s application.” Dodds v. Richardson, 614 F.3d 1185,\\n\\n1199 (10th Cir. 2010) (quotations and brackets omitted). Supervisors cannot be liable\\n\\nunder § 1983 where there is no underlying violation of a constitutional right by a\\n\\nsupervisee. See Martinez v. Beggs, 563 F.3d 1082, 1092 (10th Cir. 2009).\\n\\n b. Fourth Amendment search requirements\\n\\n i. The warrant requirement\\n\\n The Fourth Amendment protects people from unreasonable government searches\\n\\nof their “persons, houses, papers, and effects.” U.S. Const. Amend. IV. It “protects\\n\\nthe right of the people to be ‘secure in their persons’ from government intrusion\\n\\nwhether the threat to privacy arises from a policeman or a Head Start administrator.”\\n\\nDubbs v. Head Start, Inc., 336 F.3d 1194, 1205 (10th Cir. 2003). “There is no ‘social\\n\\nworker’ exception to the Fourth Amendment.” Id.\\n\\n As a general rule, a search requires a warrant based on probable cause. Illinois\\n\\nv. Gates, 462 U.S. 213, 239 (1983). “Searches conducted without a warrant are per se\\n\\nunreasonable under the Fourth Amendment—subject only to a few ‘specifically\\n\\nestablished and well-delineated exceptions.’” Roska ex rel. Roska v. Peterson, 328\\n\\nF.3d 1230, 1248 (10th Cir. 2003) (quoting Katz v. United States, 389 U.S. 347, 357\\n\\n\\n\\n\\n 15\\n\\n(1967)). These exceptions include (1) consent;13 (2) exigent circumstances;14 and (3) a\\n\\n“special need.” In this case, there was no warrant, consent, or exigent circumstance.\\n\\nThe qualified immunity question concerns, therefore, (1) whether a warrant was\\n\\nrequired for the search because the special needs exception did not apply, and (2) if it\\n\\ndid, whether the search nonetheless violated the special needs doctrine.\\n\\n ii. Special needs doctrine\\n\\n “‘Special needs’ is the label attached to certain cases where ‘special needs,\\n\\nbeyond the normal need for law enforcement, make the warrant and probable-cause\\n\\nrequirement impracticable.’” Dubbs, 336 F.3d at 1212 (quoting Bd. of Educ. of Indep.\\n\\nSch. Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822, 830 (2002)).\\n\\n There is no definitive list of “special needs.” The Supreme Court has found a\\n\\nspecial need in a principal’s in-school search of a student’s purse for drugs; a public\\n\\n\\n\\n\\n 13\\n “It is . . . well settled that one of the specifically established exceptions to the\\nrequirements of both a warrant and probable cause is a search that is conducted\\npursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).\\n 14\\n “The exigent circumstances exception allows a warrantless search when an\\nemergency leaves police insufficient time to seek a warrant. It permits, for instance,\\nthe warrantless entry of private property when there is a need to provide urgent aid to\\nthose inside, when police are in hot pursuit of a fleeing suspect, and when police fear\\nthe imminent destruction of evidence.” Birchfield v. North Dakota, 136 S. Ct. 2160,\\n2173 (2016) (citation omitted). “Warrants are generally required to search a person’s\\nhome or his person unless the exigencies of the situation make the needs of law\\nenforcement so compelling that the warrantless search is objectively reasonable under\\nthe Fourth Amendment.” Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (quotations\\nomitted) (brackets omitted).\\n 16\\n\\nemployer’s search of an employee’s desk; a probation officer’s search of a\\n\\nprobationer’s home; a Federal Railroad Administration policy requiring employees to\\n\\ntake blood and urine tests following a major rail accident; drug testing of United States\\n\\nCustoms employees applying for drug interdiction jobs; schools’ random drug testing\\n\\nof athletes; and drug testing of public school students partaking in extracurricular\\n\\nactivities. See Dubbs, 336 F.3d at 1213 (collecting cases). In Dubbs, we synthesized\\n\\nthe special needs doctrine as follows:\\n\\n (1) an exercise of governmental authority distinct from that\\n of mere law enforcement—such as the authority as\\n employer, the in loco parentis authority of school officials,\\n or the post-incarceration authority of probation officers;\\n (2) lack of individualized suspicion of wrongdoing, and\\n concomitant lack of individualized stigma based on such\\n suspicion; and (3) an interest in preventing future harm,\\n generally involving the health or safety of the person being\\n searched or of other persons directly touched by that\\n person’s conduct, rather than of deterrence or punishment\\n for past wrongdoing.\\n\\nId. at 1213-14.\\n\\n State actors can invoke the special needs doctrine only when the purpose of the\\n\\nsearch is sufficiently “divorced from the State’s general interest in law enforcement.”\\n\\nFerguson v. City of Charleston, 532 U.S. 67, 79 (2001) (drug tests used in a state\\n\\nobstetrics ward not justified under special needs because they were coordinated with\\n\\nthe police).\\n\\n\\n\\n\\n 17\\n\\n When it applies, the special needs doctrine employs a more relaxed test than the\\n\\none traditionally used under the Fourth Amendment to assess the reasonableness of a\\n\\nsearch. To evaluate special needs reasonableness, we have (1) required that (a) the\\n\\nsearch be “justified at its inception” and (b) reasonable in its “scope” given the\\n\\n“circumstances”;15 or we have (2) balanced government and private interests.16\\n\\n 1) Child abuse context: Supreme Court and Tenth Circuit\\n\\n The Supreme Court has not addressed the special needs doctrine in the context\\n\\nof social workers’ inspection of children upon suspicion of child abuse. It has rejected\\n\\nthe special needs doctrine to justify a search, but in a different child abuse context. In\\n\\nFerguson v. City of Charleston, 532 U.S. 67 (2001), the Court held that a hospital’s\\n\\ntesting of pregnant mothers in its maternity ward for cocaine and reporting results to\\n\\nauthorities under a theory that a positive result constituted “child abuse” did not qualify\\n\\nfor the special needs exception to the Fourth Amendment warrant requirement because\\n\\nof the program’s “pervasive involvement of law enforcement.” Id. at 70, 85.\\n\\n\\n\\n\\n 15\\n See, e.g., Edwards For and in Behalf of Edwards v. Rees, 883 F.2d 882, 884\\n(10th Cir. 1989) (quoting New Jersey v. T.L.O., 469 U.S. 325, 341 (1985)). T.L.O., in\\nturn, cites this test from Terry v. Ohio, 392 U.S. 1, 20 (1968).\\n 16\\n See, e.g., Dubbs: “[I]n special needs cases, the Court replaces the warrant and\\nprobable cause requirement with a balancing test that looks to the nature of the privacy\\ninterest, the character of the intrusion, and the nature and immediacy of the\\ngovernment’s interest.” 336 F.3d at 1213.\\n\\n 18\\n\\n The Tenth Circuit has not previously addressed whether the special needs\\n\\ndoctrine applies to a social worker’s search of a student at school to detect evidence of\\n\\nsuspected abuse. We applied it in a child abuse context when a student at a public\\n\\nschool needed to be interviewed. Doe v. Bagan, 41 F.3d 571, 574 n.3 (10th Cir. 1994).\\n\\nThat case concerned a seizure, however, not a search, because it involved the\\n\\nquestioning of a minor suspected of abusing another child, not an inspection of the\\n\\nallegedly abused child. See id. In another case, we held that special needs did not\\n\\npermit a social worker, who suspected abuse, to enter a home and remove a child.\\n\\nRoska, 328 F.3d at 1242. In Franz v. Lytle, 997 F.2d 784 (10th Cir. 1993), we held that\\n\\neven if a police officer is performing the functions of a social worker in examining a\\n\\nyoung child’s private areas upon suspicion of abuse, the police officer nevertheless\\n\\nmust abide by the Fourth Amendment’s warrant requirement.17\\n\\n In Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th Cir. 2003), a school invoked\\n\\nthe special needs doctrine when it subjected an entire class of children to intrusive\\n\\nphysical examinations (including genital examinations and blood tests) without\\n\\nparental notice or consent, stating this was “done in order to comply with federal\\n\\nregulations [and] is an effective means of identifying physical and developmental\\n\\n\\n\\n\\n 17\\n We decided Franz before the Supreme Court held in Ferguson that social\\nworkers are not categorically exempt from the warrant requirement when performing a\\nsearch. Ferguson, 532 U.S. at 76 & n.9.\\n\\n 19\\n\\nimpediments in children prior to them starting school, a goal of Head Start.” Id. at\\n\\n1214. We did not decide whether the doctrine applied, holding instead that even if it\\n\\ndid, the searches were unconstitutional under the balancing test. The extreme privacy\\n\\ndeprivations involved in the invasive testing outweighed the ostensible special need of\\n\\ndoing a health assessment. Id. at 1214-15.\\n\\n We therefore have not established whether the special needs doctrine permits a\\n\\nsocial worker to search a child, such as by removing clothing and/or taking\\n\\nphotographs, to investigate a report of suspected abuse.\\n\\n 2) Child abuse context: other circuits and special needs\\n\\n Other circuits have split on whether a social worker’s examination of a child\\n\\nupon suspicion of abuse requires a warrant or qualifies for the special needs doctrine.\\n\\n The Seventh Circuit held that a social worker’s visual inspection of a child upon\\n\\nsuspicion of child abuse falls under the special needs doctrine and thus can proceed\\n\\nwithout a warrant, as long as the search passes the special needs balancing test and is\\n\\nfundamentally reasonable. Darryl H. v. Coler, 801 F.2d 893 (7th Cir. 1986).18 In\\n\\nWildauer v. Frederick County, 993 F.2d 369 (4th Cir. 1993), the Fourth Circuit held\\n\\nsocial workers’ warrantless examinations of potentially abused children in their foster\\n\\n\\n\\n\\n 18\\n The Seventh Circuit later limited this holding to searches on public as opposed\\nto private property. Michael C. v. Gresbach, 526 F.3d 1008, 1016 (7th Cir. 2008).\\n 20\\n\\nhomes should be evaluated under a special needs balancing and general\\n\\n“reasonableness” analysis, as opposed to probable cause.\\n\\n Four other circuits, however, have held that social worker examinations of\\n\\nchildren based on abuse suspicions are not candidates for special needs analysis. The\\n\\nThird Circuit, in Good v. Dauphin Cty. Soc. Servs. for Children & Youth, 891 F.2d\\n\\n1087 (3d Cir. 1989), held that social workers’ search of a child in his home required\\n\\neither a search warrant, consent, or exigent circumstances. The Ninth Circuit, in\\n\\nCalabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999), held that a social worker performing\\n\\na search on a child to investigate possible abuse must have a warrant, consent, or\\n\\nexigent circumstances, and may not rely on the special needs doctrine (especially in\\n\\nthis case where a police officer was also present with the social worker). The Second\\n\\nCircuit, in Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999), held that judicial\\n\\nauthorization was required for social workers to examine a student upon suspicion of\\n\\nabuse. Finally, the Fifth Circuit, in Roe v. Texas Dep’t of Protective & Regulatory\\n\\nServs., 299 F.3d 395 (5th Cir. 2002), held that social workers performing a visual body\\n\\ncavity search for suspected abuse needed a court order based on probable cause or\\n\\nexigent circumstances, and that they could not rely on the special needs doctrine. Roe\\n\\nemphasized, under Ferguson, the overlap of social workers with law enforcement\\n\\ninvestigating abuse militates against the applicability of the special needs doctrine. Id.\\n\\nat 406.\\n\\n\\n 21\\n\\n3. Analysis\\n\\n We limit our qualified immunity analysis, as the district court did, to whether\\n\\nthe Does can satisfy the second prong of qualified immunity—that is, whether they can\\n\\nshow that any Fourth Amendment violation was based on clearly established law.\\n\\n Defendants do not contest that Ms. Woodard conducted a search for Fourth\\n\\nAmendment purposes.19 For the search to have been valid under the Fourth Amendment,\\n\\nMs. Woodard needed a warrant or one of the exceptions to the warrant requirement to\\n\\napply—consent, exigent circumstances, or the special needs doctrine. Because (1) Ms.\\n\\nWoodard did not obtain a warrant, (2) Ms. Doe did not consent to the search, and (3) the\\n\\ncircumstances were not exigent, the search would have been valid without a warrant only if\\n\\nthe special needs doctrine applied.\\n\\n The Does have not cited a Supreme Court or Tenth Circuit decision specifically\\n\\nholding that a social worker must obtain a warrant to search a child at school for evidence\\n\\nof reported abuse. Instead, they argue that (a) only a warrant could have justified the\\n\\nsearch of I.B. because the special needs doctrine did not apply, or (b) even if the special\\n\\nneeds doctrine did apply, Defendants’ conduct violated the Fourth Amendment\\n\\n\\n\\n\\n 19\\n Although the Defendants do not expressly and directly concede that I.B. was\\nsubject to a search, they devote their brief to evaluating a “search” of this type. See,\\ne.g.¸Aplee Br. at 14 (“This Court should consider a social worker’s visual inspection\\nand photographing of a child, under the circumstances alleged, as an administrative\\nsearch subject to the reasonableness balancing test . . . .”).\\n\\n 22\\n\\nreasonableness standards for a special needs search. The Does have not met their burden of\\n\\nshowing clearly established law on either ground.\\n\\n a. No showing of clearly established Fourth Amendment law on whether social\\n worker searches examining for abuse qualified for the special needs\\n exception\\n\\n In this section, we examine the Does’ attempts to show that Ms. Woodard’s\\n\\nsearch violated clearly established Fourth Amendment law in December 2014 because\\n\\nshe lacked a warrant and the special needs exception did not apply. They have failed to\\n\\ndo so. Based on our previous review of the case law and discussion below, we\\n\\nconclude that neither the Supreme Court nor this court had previously decided that the\\n\\nspecial needs exception does not apply to warrantless social worker searches for\\n\\nsuspected child abuse. Nor was the weight of authority from other circuits clearly\\n\\nestablished. We therefore hold that, when the search occurred in this case, there was\\n\\nno clearly established law that a warrant was required.\\n\\n i. Supreme Court and Tenth Circuit law\\n\\n The Does argue that Supreme Court and Tenth Circuit precedent on special\\n\\nneeds existing when Ms. Woodard searched I.B. may be read to find a Fourth\\n\\nAmendment violation under clearly-established law. They cite (1) Franz, which held\\n\\nthat a police officer could not search a young child without a warrant or consent upon\\n\\nsuspicion of abuse; (2) Dubbs, which held that examinations of children at school\\n\\nneeded a warrant, consent, or exigent circumstances, and that there is no general social\\n\\n\\n 23\\n\\nworker exception to the Fourth Amendment; (3) Roska, for the proposition that the\\n\\nspecial needs doctrine can be used only when obtaining a warrant is impracticable; and\\n\\n(4) Ferguson, for the principle that “[e]xcessive entanglement with law enforcement\\n\\nrenders the special need exception inapplicable,” Aplt. Br. at 35.20\\n\\n The Does contend that these cases put the DHS caseworkers and their\\n\\nsupervisors on notice that Ms. Woodard could not undress and photograph I.B. without\\n\\na warrant, consent, or exigent circumstances. We disagree that these cases would have\\n\\nput a reasonable social worker on notice that her conduct violated the Fourth\\n\\nAmendment.\\n\\n First, Franz involved a police officer who searched a young child upon\\n\\nsuspicion of abuse, and held that the officer needed a warrant, consent, or exigent\\n\\ncircumstances to do so. In other words, the special needs doctrine did not apply. But a\\n\\npolice search is not a social worker search, and Franz does not address the latter.\\n\\n Second, Dubbs does not clearly establish Fourth Amendment law for a social\\n\\nworker’s search for child abuse in this case. In Dubbs, the school indiscriminately\\n\\ntested the entire class and performed much more invasive examinations. The defendant\\n\\nschool officials argued that the special need was for generalized health assessment to\\n\\n\\n\\n\\n 20\\n In their reply brief, the Does drop their reference to Ferguson in their clearly-\\nestablished argument and rely only on Franz, Dubbs, and Roska. See Aplt. Reply Br.\\nat 9.\\n\\n 24\\n\\ncomply with federal regulations, not to search for child abuse. Accordingly, Dubbs did\\n\\nnot address the issue presented here—whether Ms. Woodard’s search of I.B. for child\\n\\nabuse satisfied the Fourth Amendment as a special needs search.\\n\\n Third, Roska also does not provide clearly established law. In Roska, we said\\n\\nthat a special need must “make the warrant and probable-cause requirement\\n\\nimpracticable.” 328 F.3d at 1241 (quotations omitted). It held that, barring exigent\\n\\ncircumstances, no special need “renders the warrant requirement impracticable when\\n\\nsocial workers enter a home to remove a child.” Id. at 1242. Roska does not bear upon\\n\\nsocial workers searching and photographing a child at school for suspected child abuse.\\n\\n Finally, in Ferguson, the Supreme Court held that hospital workers’ reporting of\\n\\ndrug tests taken in a maternity ward to police could not qualify for the special needs\\n\\nexception because their conduct was too intertwined with law enforcement. Ferguson\\n\\nsays nothing about social workers searching and photographing a child at school\\n\\nbecause of suspected child abuse or whether such conduct is unacceptably entangled\\n\\nwith law enforcement to qualify for special needs analysis. Nor have we, in contrast to\\n\\nthe Fifth Circuit in Roe, ever held that a social worker search for suspected abuse\\n\\ncontext was too closely tied to law enforcement to qualify for the special needs\\n\\ndoctrine.\\n\\n Taken together, these four cases do not constitute clearly established law that the\\n\\nDoes suffered a Fourth Amendment violation because no warrant was obtained. They\\n\\n\\n 25\\n\\nare not factually similar enough to apply to the Does’ claim. See White, 137 S. Ct. at\\n\\n552 (“[I]t is again necessary to reiterate the longstanding principle that “clearly\\n\\nestablished law should not be defined at a high level of generality . . . . [C]learly\\n\\nestablished law must be particularized to the facts of the case.”) (quotations and\\n\\ncitations omitted).\\n\\n ii. Other circuits\\n\\n Four circuits have rejected the special needs doctrine as an exception to the\\n\\n warrant requirement and two have approved it for searches like the one here. This\\n\\n does not amount to a “clearly established weight of authority from other courts,”\\n\\n Estate of Lockett, 841 F.3d at 1112 (quotations omitted), such that this “statutory or\\n\\n constitutional question [is] beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741\\n\\n (2011). Also, the circuits rejecting the special needs doctrine often did so based on\\n\\n facts distinguishable from this case—for instance, the search occurred at the child’s\\n\\n home, see, e.g., Good, 891 F.2d at 1092; Roe, 299 F.3d at 411-12, or involved taking\\n\\n the child out of school to a hospital, see Tenenbaum, 193 F.3d at 602.\\n\\n b. No showing of clearly established law on minimal Fourth Amendment\\n reasonableness standards\\n\\n Despite the lack of law clearly showing the special needs doctrine did not apply\\n\\n to the search here, the Does could still attempt to show that Ms. Woodard’s search\\n\\n failed to meet clearly established minimal Fourth Amendment reasonableness\\n\\n standards applicable to special needs searches.\\n 26\\n\\n When the Supreme Court first described the “special needs” exception in New\\n\\n Jersey v. T.L.O., 469 U.S. 325 (1985), it said a special needs search must satisfy\\n\\n minimum standards drawn from Terry v. Ohio, 392 U.S. 1 (1968):\\n\\n the legality of a search of a student should depend simply\\n on the reasonableness, under all the circumstances, of the\\n search. Determining the reasonableness of any search\\n involves a twofold inquiry: first, one must consider\\n “whether the . . . action was justified at its inception”;\\n second, one must determine whether the search as actually\\n conducted “was reasonably related in scope to the\\n circumstances which justified the interference in the first\\n place.”\\n\\nT.L.O., 469 U.S. at 341 (alteration in original) (citation omitted) (quoting Terry, 392\\n\\nU.S. at 20). As noted above, we also have measured reasonableness by balancing\\n\\ngovernment and private interests. See Dubbs, 336 F.3d at 1214.21\\n\\n i. Appellants’ failure to show clearly established law\\n\\n\\n\\n 21\\n Although the Terry reasonableness determination and the interest-balancing\\napproach are not identical, courts have recognized overlap in these tests. See, e.g.,\\nJones v. Hunt, 410 F.3d 1221, 1228-29 (10th Cir. 2005) (assessing reasonableness\\nunder Terry and quoting Wyoming v. Houghton, 526 U.S. 295, 299–300 (1999), for the\\nproposition that courts may “evaluate the search or seizure under traditional standards\\nof reasonableness by assessing, on the one hand, the degree to which it intrudes upon\\nan individual’s privacy and, on the other, the degree to which it is needed for the\\npromotion of legitimate governmental interests.”). See also Darryl H., 801 F.2d\\n902-03 (adopting approach that blends Terry analysis with interest-balancing test:\\n“The test of reasonableness under the Fourth Amendment is not capable of precise\\ndefinition or mechanical application. In each case it requires a balancing of the need\\nfor the particular search against the invasion of personal rights that the search entails.\\nCourts must consider the scope of the particular intrusion, the manner in which it is\\nconducted, the justification for initiating it, and the place in which it is conducted.”)\\n(quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)).\\n 27\\n\\n The Appellants offer almost no analysis to support their contention that the\\n\\nsearch violated clearly established minimal Fourth Amendment standards. Their\\n\\nopening brief devotes less than two pages to this issue. Although it cites several cases,\\n\\nincluding Dubbs, it does not provide any case analysis or otherwise begin to show how\\n\\nAppellants can meet the clearly established law burden to overcome qualified\\n\\nimmunity. Aplt. Br. at 36-37. Their Reply Brief fares no better. It mixes arguments\\n\\nand case cites about warrant requirements and the special needs exception with\\n\\narguments about reasonable searches. Aplt. Reply at 8-9. Other than parenthetical\\n\\ncase summaries, however, the Reply lacks case analysis or explanation as to why these\\n\\ncases clearly establish that Ms. Woodard’s search violated minimal Fourth Amendment\\n\\nprotections. The Reply complains that the Appellees have failed to provide case law to\\n\\nsupport the search and then states it is “not impermissibly shift[ing] the burden” to the\\n\\nAppellees. Id. at 10. But that is exactly what their argument would do. The\\n\\nAppellants’ failure to meet their burden should resolve the issue. The dissent attempts\\n\\nto do their work for them, but it does not show the law was clearly established, either.\\n\\n\\n\\n\\n 28\\n\\n ii. The dissent\\n\\n We have shown that in December 2014 the law did not clearly establish that a\\n\\nwarrant was required to justify Ms. Woodard’s search. This is so because the law did not\\n\\nclearly establish that Ms. Woodard could not rely on the special needs exception to justify\\n\\nthe search. See McInerney, 791 F.3d at 1237 (performing clearly established analysis by\\n\\nexamining whether it was clearly established that an exception did not apply to the Fourth\\n\\nAmendment’s warrant requirement).\\n\\n Despite appearing to agree with the foregoing, the dissent contends the search\\n\\nviolated clearly established Fourth Amendment requirements even assuming the special\\n\\nneeds doctrine applied. We disagree for two related reasons—(1) the cases it relies on are\\n\\nfactually distinguishable from this case, and (2) Supreme Court precedent calls for factually\\n\\nsimilar cases to constitute clearly established law. We respond to the dissent to address\\n\\nwhether it was clearly established that the special needs doctrine’s reasonableness\\n\\nstandards were not met in this case.\\n\\n First, the Does must “identify a case where an officer acting under similar\\n\\ncircumstances . . . was held to have violated the Fourth Amendment.” White, 137 S. Ct. at\\n\\n552. The dissent relies on two cases that are materially different from this case. In Dubbs,\\n\\nthe purpose of the search was to identify physical and developmental impediments in all\\n\\n\\n\\n\\n 29\\n\\nchildren to comply with federal Head Start program requirements.22 The state actors did\\n\\nnot attempt to justify the search in Dubbs based on the special need of detecting child\\n\\nabuse—just the opposite: “The nurses who administered the examinations, Strayhorn and\\n\\nBaker, testified that the exams were in conformity with standards for well-child\\n\\nexaminations and were not performed for the purpose of detecting child abuse.” 336 F.3d\\n\\nat 1200. In Safford, the purpose of the search was to prevent a student from distributing\\n\\nmedications to other students. 557 U.S. at 368. The purpose of Ms. Woodard’s search was\\n\\nto check for reported child abuse. Although, as the dissent notes, all three searches served\\n\\n“the state’s interest in child welfare,” Dissent Op. at 6, the purpose of Ms. Woodard’s\\n\\nsearch was different in kind from the others—to protect a child from reported abuse.\\n\\n In Dubbs, the nature of the search was an intrusive examination of the genitals of all\\n\\nchildren in the class, “separated only by partitions, so that it was possible for other children\\n\\nto see or hear portions of the examinations performed on their classmates.” Dubbs, 336\\n\\nF.3d at 1199. “The girls were asked to lay spread-legged on a table where the nurses\\n\\ninspected the girls’ labia; in some cases the nurses would ‘palpate,’ or touch, the genital\\n\\narea when a visual inspection was not adequate. Similarly, the nurses would palpate the\\n\\n\\n 22\\n The dissent, quoting Dubbs, states that “‘[t]he focus of the [Fourth]\\nAmendment is . . . on the security of the person, not the identity of the searcher or the\\npurpose of the search.’” Dissent Op. at 7 (quoting Dubbs, 336 F.3d at 1206). But this\\nquotation from Dubbs addressed whether the physical examinations in that case were\\n“searches” under the Fourth Amendment in the first place, not whether a given search\\nwas reasonable under the Fourth Amendment.\\n\\n 30\\n\\nboys’ genitals to test for the presence of testes.” Id. at 1200. Accordingly, not only was the\\n\\nstate justification weaker in Dubbs than in this case, the search was far more invasive, far\\n\\nless private, and applied indiscriminately to the entire class. Dubbs held the search\\n\\nunconstitutional under “the ‘special needs’ balancing test,” id. at 1214, but the factors to\\n\\nbalance in this case are plainly different.\\n\\n In Safford, school officers searched a student suspected of distributing medications\\n\\nto other students. 557 U.S. at 368. The search, which involved removal of the student’s\\n\\nclothing and pulling aside her undergarments to expose private areas, id. at 369, was\\n\\ncomparable to this case, but the circumstances underlying the search were different. The\\n\\nstudent searched in Safford was suspected of harming others through drug distribution. Id.\\n\\nat 377. The child in this case was suspected of suffering abuse from a third party. The\\n\\nSafford Court asked whether the search was “‘reasonably related in scope to the\\n\\ncircumstances which justified the interference,’” id. at 375 (quoting T.L.O., 469 U.S. at\\n\\n341), and held that it was not, given that the school lacked facts that the alleged\\n\\nmedications were dangerous or that the student hid them “in her underwear.” Id. at 376.\\n\\nNeither Safford or Dubbs served to clearly establish that Ms. Woodard’s search of I.B. was\\n\\nnot reasonably related in scope to the circumstances—suspected child abuse. The dissent\\n\\ncorrectly states that the searches in all three cases involved the children’s “intimate areas,”\\n\\nbut the purpose and circumstances of the search for suspected child abuse in this case\\n\\n\\n\\n\\n 31\\n\\ndiffered too much for Dubbs and Safford to have guided Ms. Woodard with clearly\\n\\nestablished law.\\n\\n Unlike the dissent, therefore, we do not see how a reasonable social worker in Ms.\\n\\nWoodard’s position would, based on these cases, know that her search of I.B. violated the\\n\\nrequirements for the special needs exception or the basic protections of the Fourth\\n\\nAmendment. “The precedent must be clear enough that every reasonable official would\\n\\ninterpret it to establish the particular rule the plaintiff seeks to apply.” Wesby, 138 S. Ct. at\\n\\n590; see also Mullenix, 136 S. Ct. at 308 (“A clearly established right is one that is\\n\\nsufficiently clear that every reasonable official would have understood that what he is\\n\\ndoing violates that right.”) (quotations omitted). As we have shown, the facts in this case\\n\\ndiffer markedly from the facts in the cases the dissent attempts to use for clearly established\\n\\nlaw.\\n\\n Second, the dissent’s reliance on these cases runs counter to the Supreme Court’s\\n\\nrepeated instruction that “clearly established law should not be defined at a high level of\\n\\ngenerality” but “must be particularized to the facts of the case.” White, 137 S. Ct. at 552\\n\\n(quotations omitted). The Court has stressed that the rule’s high “degree of specificity” is\\n\\n“especially important in the Fourth Amendment context.” Mullenix, 136 S. Ct. at 309. The\\n\\ndissent contends that the clearly established “particular rule” in December 2014, Dissent\\n\\nOp. at 6 (quoting Wesby, 138 S. Ct. at 590), was that a search “needed to be ‘justified at its\\n\\ninception and reasonably related in scope to the circumstances that justified the interference\\n\\n\\n 32\\n\\nin the first place,’” id. (quoting Aplt. Br. at 36). But this minimal Fourth Amendment\\n\\nstandard applies to all searches. It is not particularized to the facts of this case. The dissent\\n\\ntherefore attempts “to define clearly established law at a high degree of generality”\\n\\ncontrary to the Supreme Court’s instructions. Kisela v. Hughes, 138 S. Ct. 1148, 1152\\n\\n(2018) (quotations omitted).23\\n\\n Even if Dubbs and Safford offer plausible authority to support a special needs\\n\\nFourth Amendment violation here, whether they supply clearly established law is at most\\n\\ndebatable, and to be clearly established, “‘existing precedent must have placed the statutory\\n\\nor constitutional question beyond debate.’” White, 137 S. Ct. at 551 (quoting Mullenix,\\n\\n136 S. Ct. at 308). “It is not enough that the rule is suggested by then-existing precedent.”\\n\\nWesby, 138 S. Ct. at 590. Qualified immunity lies where “none of the cases [the parties\\n\\n\\n\\n\\n 23\\n The Supreme Court has repeatedly emphasized for more than 35 years that\\ngeneralized propositions of law are insufficient for clearly established law purposes.\\nSee Anderson v. Creighton, 483 U.S. 635, 640 (1987) (Court of Appeals “misapplied\\n[qualified immunity] principles” when its “discussion of qualified immunity consisted of\\nlittle more than an assertion that a general right Anderson was alleged to have violated—\\nthe right to be free from warrantless searches of one’s home unless the searching officers\\nhave probable cause and there are exigent circumstances—was clearly established.”);\\nBrosseau v. Haugen, 543 U.S. 194, 198-99 (2004) (per curiam) (Court of Appeals was\\nmistaken in using “the general proposition that use of force is contrary to the Fourth\\nAmendment if it is excessive under objective standards of reasonableness” for clearly\\nestablished purposes because the proposition is “cast a high level of generality” (quotations\\nomitted)).\\n\\n 33\\n\\nand the dissent rely on] squarely governs the case here.” Mullenix, 136 S. Ct. at 309\\n\\n(brackets and quotations omitted).24\\n\\n To the extent the Does attempt to argue that this is the rare alleged violation of\\n\\nminimal Fourth Amendment standards that is so “obvious” that a factually similar case\\n\\nis unnecessary for the clearly established law standard,25 see Aplt. Reply Br. at 6\\n\\n(citing Hope, 536 U.S. at 741), this argument fails. “[T]his is not an obvious case\\n\\nwhere a body of relevant case law is not needed.” Wesby, 138 S. Ct. at 591 (quotations\\n\\nomitted).\\n\\n\\n\\n\\n 24\\n The dissent also contends that Safford clearly establishes that “the\\ncategorically extreme intrusiveness” of a body search “requires some justification in\\nsuspected facts, general background possibilities fall short.” Dissent Op. at 7 (quoting\\nSafford, 575 U.S. at 376). But the Does and the dissent do not show that under the\\ncircumstances in this case, a reasonable social worker in Ms. Woodard’s shoes would\\nhave known her conduct fell short. As alleged in the First Amended Complaint, the\\nreport that I.B. was being abused contained specifics—“little bumps on I.B.’s face, a bruise\\nabout the size of a nickel on her neck, a small red mark on her lower back, two small cuts\\non her stomach, and bruised knees.” Aplt. App., Vol I at 15 ¶ 36. Combined with a report\\nof child abuse, a reasonable social worker could understand these to be “suspected facts,”\\nnot “general background possibilities.” To the extent Appellants pled, as the dissent\\nsuggests, that “Ms. Woodard was never aware of facts that could have justified such an\\nintrusive search of a four-year-old girl,” Dissent Op. at 9, such an allegation is both\\nconclusory and contradicted by other allegations in the First Amended Complaint.\\n 25\\n See, e.g., McCoy v. Meyers, 887 F.3d 1034, 1053 (10th Cir. 2018) (“Even\\nassuming that our previous cases were not sufficiently particularized to satisfy the\\nordinary clearly established law standard, ours is ‘the rare obvious case, where the\\nunlawfulness of the [state actor’s] conduct is sufficiently clear even though existing\\nprecedent does not address similar circumstances.’” (quoting Wesby, 138 S. Ct. at 590);\\nsee also White, 137 S. Ct. at 552; Brosseau, 543 U.S. at 199.\\n\\n 34\\n\\n * * * *\\n\\n In summary, the Does have not shown that Ms. Woodard’s search violated clearly\\n\\nestablished Fourth Amendment law. We affirm the district court’s conclusion that the\\n\\nDefendants, including supervisors, were entitled to qualified immunity and that the Fourth\\n\\nAmendment claims should be dismissed. 26\\n\\n B. Fourteenth Amendment Claims\\n\\n This section addresses the two substantive due process claims for violation of\\n\\nparental rights and interference with familial association. We describe our standard of\\n\\nreview and provide legal background on the facts required to allege these types of\\n\\nclaims and how those facts must “shock the conscience.” We then examine whether\\n\\nthe Does’ complaint states a plausible claim under these standards and, like the district\\n\\ncourt, find it lacking.\\n\\n1. Standard of Review\\n\\n We review de novo a district court’s Rule 12(b)(6) dismissal of a complaint for\\n\\nfailure to state a claim. Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir.\\n\\n\\n\\n\\n 26\\n In a different circuit with more developed law, the analysis of the “clearly\\nestablished” prong of qualified immunity might have been different. As noted above,\\nwe do not address the first step of qualified immunity analysis—whether the\\nDefendants violated the Fourth Amendment.\\n We note that El Paso County DHS later instituted a policy under which social\\nworkers must ask parental permission or obtain a court order before searching and\\nphotographing children for suspected abuse. Aplt. App., Vol. II at 7.\\n\\n 35\\n\\n2002). To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must plead\\n\\nsufficient factual allegations “to state a claim to relief that is plausible on its face.”\\n\\nBell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible\\n\\n“when the plaintiff pleads factual content that allows the court to draw the reasonable\\n\\ninference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,\\n\\n556 U.S. 662, 678 (2009). Dismissal under Rule 12(b)(6) is appropriate if the\\n\\ncomplaint alone is legally insufficient to state a claim. See Peterson v. Grisham, 594\\n\\nF.3d 723, 727 (10th Cir. 2010).\\n\\n Under our de novo review, “[a]ll well-pleaded facts, as distinguished from\\n\\nconclusory allegations, must be taken as true,” and we must liberally construe the\\n\\npleadings and make all reasonable inferences in favor of the non-moving party. Ruiz v.\\n\\nMcDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002) (quotations omitted).\\n\\n2. Legal Background\\n\\n The following describes the parental right to direct medical care and the right of\\n\\nfamilial association. To state a claim for either, the plaintiff must show that the alleged\\n\\nconduct “shocks the conscience.”\\n\\n a. Substantive due process claims—“shocks the conscience”\\n\\n In Halley v. Huckaby, 902 F.3d 1136 (10th Cir. 2018), we recently recounted\\n\\nthat the Supreme Court recognizes two types of substantive due process claims: (1)\\n\\nclaims that the government has infringed a “fundamental” right, see, e.g., Washington\\n\\n\\n 36\\n\\nv. Glucksberg, 521 U.S. 702, 721-22 (1997) (assessing asserted right to assisted\\n\\nsuicide); and (2) claims that government action deprived a person of life, liberty, or\\n\\nproperty in a manner so arbitrary it shocks the judicial conscience, see, e.g., City of\\n\\nSacramento v. Lewis, 523 U.S. 833, 846 (1998) (examining a high-speed police chase).\\n\\nHalley, 902 F.3d at 1153. “[W]e apply the fundamental-rights approach when the\\n\\nplaintiff challenges legislative action, and the shocks-the-conscience approach when\\n\\nthe plaintiff seeks relief for tortious executive action.” Id. The Does’ substantive due\\n\\nprocess claims—violation of the parental right to direct medical care and to familial\\n\\nassociation—challenge executive action, id. at 1154, and therefore are “shocks the\\n\\nconscience” claims.\\n\\n Executive action that shocks the conscience requires much more than\\n\\nnegligence. Moore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir. 2006). Even the actions\\n\\nof a reckless official or one bent on injuring a person do not necessarily shock the\\n\\nconscience. Id. “Conduct that shocks the judicial conscience” is “deliberate\\n\\ngovernment action that is arbitrary and unrestrained by the established principles of\\n\\nprivate right and distributive justice.” Hernandez v. Ridley, 734 F.3d 1254, 1261 (10th\\n\\nCir. 2013) (quotations omitted). “To show a defendant’s conduct is conscience\\n\\nshocking, a plaintiff must prove a government actor arbitrarily abused his authority or\\n\\nemployed it as an instrument of oppression.” Id. (brackets omitted) (quotations\\n\\nomitted). “The behavior complained of must be egregious and outrageous.” Id.; see\\n\\n\\n 37\\n\\nBreithaupt v. Abram, 352 U.S. 432, 435 (1957) (“We set aside the conviction because\\n\\nsuch conduct ‘shocked the conscience’ and was so ‘brutal’ and ‘offensive’ that it did\\n\\nnot comport with traditional ideas of fair play and decency.”) The Supreme Court\\n\\nfound conscience-shocking behavior in a case involving a sheriff’s application of\\n\\nstomach pumping to force vomiting, Rochin v. California, 342 U.S. 165, 172 (1952).\\n\\nThis Circuit recently found a social worker’s various actions that led to physical and\\n\\nsexual abuse of a minor shocked the conscience. T.D. v. Patton, 868 F.3d 1209, 1213\\n\\n(10th Cir. 2017).\\n\\n b. Parental right to direct child’s medical care\\n\\n The Fourteenth Amendment protects the right of parents to make decisions\\n\\n“concerning the care, custody, and control of their children.” Troxel v. Granville, 530\\n\\nU.S. 57, 66 (2000). This right provides “some level of protection for parents’ decisions\\n\\nregarding their children’s medical care.” PJ ex rel Jensen v. Wagner, 603 F.3d 1182,\\n\\n1197 (10th Cir. 2010). The right to direct a child’s medical care is not absolute.\\n\\n“[W]hen a child’s life or health is endangered by her parents’ decisions, in some\\n\\ncircumstances a state may intervene without violating the parents’ constitutional\\n\\nrights.” Id. at 1198. As noted above, a violation of this right must be conscience\\n\\nshocking.\\n\\n\\n\\n\\n 38\\n\\n c. Right of familial association\\n\\n The government’s “forced separation of parent from child, even for a short time,\\n\\nrepresents a serious impingement” on a parent’s substantive due process right to\\n\\nfamilial association. Jensen, 603 F.3d at 1199 (quotations omitted). A familial\\n\\nassociation claim must be based on allegations of abusive government authority. See\\n\\nGriffin v. Strong, 983 F.2d 1544, 1547 (10th Cir. 1993); see also Jensen, 603 F.3d at\\n\\n1198-99; J.B. v. Washington County, 127 F.3d 919, 927 (10th Cir. 1997). A parent\\n\\nmust allege “intent to interfere” with this right—that is, the state actor must have\\n\\ndirected conduct at the familial relationship “with knowledge that the statements or\\n\\nconduct will adversely affect that relationship.” Lowery v. City of Riley, 522 F.3d\\n\\n1086, 1092 (10th Cir. 2008). Again, the right is not absolute, but must be weighed\\n\\nagainst the state’s interest in protecting a child’s health and safety. See Youngberg v.\\n\\nRomeo, 457 U.S. 307, 320-21 (1982); see also Jensen, 603 F.3d at 1199; Lowery, 522\\n\\nF.3d at 1092. In conducting this balancing, courts consider the severity of the\\n\\ninfringement on the protected relationship, the need for defendants’ conduct, and\\n\\npossible alternative courses of action. See Griffin, 983 F.2d at 1548.27\\n\\n\\n 27\\n In Halley, we explained that, the two-part test “simply describes the kind of\\nbehavior we find to shock the conscience in this context.” 902 F.3d at 1154. “Namely,\\nit shocks the conscience when: (1) the officials intended to deprive the plaintiff of a\\nprotected relationship with a family member, and (2) the officials’ intrusion into the\\nrelationship was not warranted by state interests in the health and safety of the family\\nmember. Together, the facts alleged by the plaintiff on these points must meet the\\nshocks-the-conscience standard.” Id. (footnote and citation omitted).\\n 39\\n\\n To state a claim, Ms. Doe must have alleged that (1) the Defendants intended to\\n\\ndeprive her of her protected relationship with her daughter, see Estate of B.I.C. v.\\n\\nGillen, 710 F.3d 1168, 1175 (10th Cir. 2013); and that (2) the Defendants either unduly\\n\\nburdened Ms. Doe’s protected relationship, see Jensen, 603 F.3d at 1199, or effected\\n\\nan “unwarranted intrusion” into that relationship, Trujillo v. Bd. of Cty. Comm’rs, 768\\n\\nF.2d 1186, 1190 (10th Cir. 1985).\\n\\n3. Analysis\\n\\n a. Right to direct medical care\\n\\n Ms. Doe’s allegations on the right to control medical treatment do not “shock the\\n\\nconscience.” To be conscience-shocking, Ms. Woodard’s (or her supervisors’)\\n\\nbehavior had to be so “arbitrary” to be “as an instrument of oppression,” “egregious,”\\n\\n“outrageous,” and “so brutal and offensive” that it runs afoul of “traditional ideas of\\n\\nfair play and decency.” Hernandez, 734 F.3d at 1261; Breithaupt, 352 U.S. at 435.\\n\\n The allegations did not allege this level of severity. They did not allege\\n\\ninterference with Ms. Doe’s control of I.B.’s medical treatment other than Ms.\\n\\nWoodard’s performing an initial examination to determine whether I.B. had been\\n\\nabused. To the extent this was a “medical decision,” it hardly rose to the level of what\\n\\nprecedent requires for “shocks the conscience.”\\n\\n\\n\\n\\n 40\\n\\n b. Familial association\\n\\n Ms. Doe’s familial association allegations similarly did not “shock the\\n\\nconscience” under Halley. We consider whether the complaint alleged (1) a\\n\\ndeprivation of Ms. Doe’s protected relationship with I.B. that (2) “unduly burdened”\\n\\nthat relationship in a manner that was “egregious,” “outrageous,” “unrestrained,”\\n\\n“brutal,” and a display of arbitrary power being used “as an instrument of oppression.”\\n\\nMoore, 438 F.3d at 1040; Hernandez, 734 F.3d at 1261; Breithaupt, 352 U.S. at 435.\\n\\n Again, the complaint did not allege this level of severity. The Does argue in\\n\\ntheir brief that their complaint should be read to allege that Ms. Woodard intended to\\n\\nseparate I.B. from her mother to conduct an examination without the mother present.\\n\\nBut even if the complaint could be read this way, it still needed to allege an intended\\n\\ndeprivation or suspension of the parent-child relationship that shocks the conscience.\\n\\nSee, e.g., Thomas v. Kaven, 765 F.3d 1183, 1195-96 (10th Cir. 2014) (complaint\\n\\nsufficiently stated claim for § 1983 familial association claim where it was alleged\\n\\nDefendant, upon suspecting domestic sexual abuse, placed a medical hold on a child to\\n\\nprevent parents from taking the child home from the hospital). Here, the complaint\\n\\nlacked allegations that Ms. Woodard’s motivation was anything other than to\\n\\ninvestigate potential child abuse.\\n\\n Moreover, the search happened during school hours when I.B.’s mother would\\n\\nnot otherwise have been with her. To the extent I.B. was separated from her mother\\n\\n\\n 41\\n\\nduring a time when she would have wanted her mother to be present, this is a far cry\\n\\nfrom the substantial separation required in other cases. See, e.g., Thomas, 765 F.3d at\\n\\n1188-90, 1197-98 (Fourteenth Amendment claim stated where plaintiff’s daughter\\n\\nallegedly separated coercively for weeks in mental health ward); Roska, 328 F.3d at\\n\\n1238-39, 1246 (familial association Fourteenth Amendment claim stated where child\\n\\nwas removed from home and placed under protective care for a week).\\n\\n * * * *\\n\\n In summary, the Does have failed to state a Fourteenth Amendment substantive due\\n\\nprocess claim for violation of parental rights or interference with familial association\\n\\nagainst the Defendants.\\n\\n III. CONCLUSION\\n\\n We affirm the district court’s (1) dismissal of the I.B.’s Fourth Amendment\\n\\nclaims under qualified immunity, and (2) dismissal of the Does’ Fourteenth\\n\\nAmendment claims for failure to state a claim.28\\n\\n\\n\\n\\n 28\\n We also affirm the district court’s denial of the Does’ motion for leave to\\namend their complaint. Amendment would have been futile given this opinion’s\\nanalysis of clearly established law. See Jefferson Cty. Sch. Dist. No. R-1 v. Moody’s\\nInv’rs Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999) (“Although [Federal Rule of\\nCivil Procedure] 15(a) provides that leave to amend shall be given freely, the district\\ncourt may deny leave to amend where amendment would be futile.”).\\n\\n 42\\n\\nNo. 18-1066, Doe v. Woodard\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":376,"cells":{"id":{"kind":"number","value":4579289,"string":"4,579,289"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee, v. Oscar ALMANZA-VIGIL, Defendant - Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Almanza-Vigil"},"decision_date":{"kind":"string","value":"2019-01-07"},"docket_number":{"kind":"string","value":"17-2007"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Phillips, Kelly, Murphy\", \"parties\": \"\", \"opinions\": [{\"author\": \"PHILLIPS, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS January 7, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n UNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v. No. 17-2007\\n\\n OSCAR ALMANZA-VIGIL,\\n\\n Defendant - Appellant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of New Mexico\\n (D.C. No. 2:15-CR-02605-RB-1)\\n _________________________________\\n\\nJames N. Langell, Assistant Federal Public Defender (Stephen P. McCue, Federal Public\\nDefender, with him on the briefs), Office of the Federal Public Defender, Las Cruces,\\nNew Mexico, for Appellant.\\n\\nMarisa A. Ong, Assistant United States Attorney (James D. Tierney, Acting United States\\nAttorney, with her on the brief), Office of the United States Attorney, Las Cruces, New\\nMexico, for Appellee.\\n _________________________________\\n\\nBefore PHILLIPS, KELLY, and MURPHY, Circuit Judges.\\n _________________________________\\n\\nPHILLIPS, Circuit Judge.\\n _________________________________\\n\\n The Immigration and Naturalization Act (INA) defines “aggravated felony” to\\n\\ninclude “illicit trafficking in a controlled substance,” 8 U.S.C. § 1101(a)(43)(B),\\n\\nmaking removal from this country “a virtual certainty” for a noncitizen convicted of\\n\\fsuch a crime, Sessions v. Dimaya, 138 S. Ct. 1204, 1211 (2017). The INA imposes\\n\\nserious consequences on a noncitizen convicted of an aggravated felony: (1) he\\n\\nbecomes deportable, 8 U.S.C. § 1227(a)(2)(A)(iii); (2) he loses the ability to obtain\\n\\ndiscretionary relief, like cancellation of removal, id. § 1229b(a)(3), or voluntary\\n\\ndeparture, id. § 1229c(a)(1); and (3) he is subject to expedited removal proceedings,\\n\\nwith no immigration judge present, id. § 1228(a)(1).\\n\\n That helps explain the stakes for Oscar Almanza-Vigil. In 2007, he pleaded\\n\\nguilty in Colorado state court to “selling or distributing” methamphetamine in\\n\\nviolation of Colorado Revised Statutes § 18-18-405(1)(a) (2006), for which he\\n\\nreceived a four-year prison sentence. In 2009, when the state paroled him,\\n\\nImmigration and Customs Enforcement (ICE) initiated expedited removal\\n\\nproceedings against him, declaring that he had committed an aggravated felony. With\\n\\nthat designation, he had no right to an administrative hearing before an immigration\\n\\njudge. Compare 8 U.S.C. § 1229a (“An immigration judge shall conduct proceedings\\n\\nfor deciding the inadmissibility or deportability of an alien.”), with 8 U.S.C.\\n\\n§ 1228(b)(1), and 8 C.F.R. § 238.1(b)(2)(i) (allowing the government to put\\n\\naggravated felons in expedited removal proceedings without a hearing before an\\n\\nimmigration judge). Within the week, the Department of Homeland Security had\\n\\nissued a final administrative removal order, and ICE agents had sent Almanza-Vigil\\n\\nback across the border to Mexico. Six years later, border-patrol agents found\\n\\nAlmanza-Vigil in the New Mexico desert. Then, charged with illegal reentry,\\n\\nAlmanza-Vigil moved to dismiss the indictment by collaterally attacking his previous\\n\\n 2\\n\\fremoval order and arguing, for the first time, that he never committed an aggravated\\n\\nfelony.\\n\\n Now reviewing the district court’s judgment convicting Almanza-Vigil for\\n\\nillegal reentry, we must return to 2009, when he left state prison, and ask how he\\n\\ncould have avoided removal. To prevail here, Almanza-Vigil must show not only that\\n\\nhis Colorado felony was not an aggravated felony, but that misclassifying it as one\\n\\nprejudiced him. To show the required prejudice, he must show that the\\n\\nmisclassification rendered the entry of the 2009 removal order fundamentally unfair.\\n\\nAbsent that, his appeal fails. See 8 U.S.C. § 1326(d).\\n\\n For the reasons detailed below, we conclude that Almanza-Vigil’s Colorado\\n\\nfelony does not fit the INA’s definition of an aggravated felony. But we also\\n\\nconclude that he failed to demonstrate a reasonable likelihood of avoiding removal\\n\\nbut for the erroneous classification of his conviction. The INA therefore parries a\\n\\ncollateral attack on Almanza-Vigil’s previous removal order. 8 U.S.C. § 1326(d). So,\\n\\nexercising our jurisdiction to review the district court’s final orders, 28 U.S.C.\\n\\n§ 1291, we affirm that court’s judgment of conviction.1\\n\\n\\n 1\\n The INA curbs our jurisdiction to review the removal order itself. Though the\\nAct grants federal appellate courts exclusive authority to review final orders of\\nremoval, it also carves from that authority our jurisdiction to review “any final order\\nof removal entered against an alien who is removable by reason of having committed\\na criminal offense” covered by the statute, including an aggravated felony. 8 U.S.C.\\n§ 1252(a)(1), (a)(2)(C). Irrespective of statutory bars on our jurisdiction, however,\\nwe retain the “authority to determine whether the factual conditions for the bar are\\npresent.” Shepherd v. Holder, 678 F.3d 1171, 1180 (10th Cir. 2012). Moreover,\\nnotwithstanding 8 U.S.C. § 1252(a)(2)(C)’s ban on reviewing orders to remove\\n\\n 3\\n\\f BACKGROUND\\n\\n Born in Chihuahua in 1984, Almanza-Vigil is a Mexican citizen. In 1993,\\n\\neight-year-old Almanza-Vigil and his family trekked across the Mexico–United\\n\\nStates border, without documents and without government inspection, and settled in\\n\\nColorado. Almanza-Vigil never acquired legal immigration status, but he grew up in\\n\\nthis country, learning English, graduating from high school, finding work at a dairy\\n\\nfarm, and eventually fathering a son.\\n\\n In 2006, when Almanza-Vigil was twenty-one years old, the district attorney\\n\\nin Fort Morgan, Colorado, charged him with six violations of the state’s controlled-\\n\\nsubstances act, all felonies. Counts 1, 2, and 3 of the criminal complaint charge three,\\n\\nidentical crimes: that “[o]n or [a]bout” September 15, 20, and 27 of that year,\\n\\nAlmanza-Vigil “unlawfully, feloniously, and knowingly sold or distributed\\n\\nMETHAMPHETAMINE, a schedule II controlled substance, in violation of section\\n\\n18-18-405(1),(2)(a)(I)(A), [Colorado Revised Statutes].” Suppl. R. vol. 2 at 3\\n\\n(bolding removed). Likewise, counts 4, 5, and 6 charge him with possessing\\n\\nmethamphetamine “[o]n or [a]bout” the same dates. Id. vol. 2 at 3–4.\\n\\n At the time, Colorado Revised Statutes § 18-18-405 provided, in pertinent\\n\\npart:\\n\\n\\n\\n“criminal aliens”—or any other statutory (or non-statutory) limit on our\\njurisdiction—the INA preserves our jurisdiction to review constitutional and legal\\nissues. See 8 U.S.C. § 1252(a)(2)(D). So, even within the INA’s (restrictive) judicial-\\nreview scheme, 8 U.S.C. § 1252 leaves us the authority to decide whether Almanza-\\nVigil committed an aggravated felony.\\n\\n 4\\n\\f (1)(a) Except as authorized by [other provisions of state law], it is\\n unlawful for any person knowingly to manufacture, dispense, sell,\\n distribute, possess, or to possess with intent to manufacture, dispense,\\n sell, or distribute a controlled substance; or induce, attempt to induce, or\\n conspire with one or more other persons, to manufacture, dispense, sell,\\n distribute, possess, or possess with intent to manufacture, dispense, sell,\\n or distribute a controlled substance; or possess one or more chemicals or\\n supplies or equipment with intent to manufacture a controlled substance.\\n\\n ....\\n\\n (2)(a) Except as is otherwise provided in subsection (2.3) of this section\\n for possession offenses not including possession with the intent to\\n distribute involving one gram or less of any material, compound, mixture,\\n or preparation that contains any quantity of a schedule I through IV\\n controlled substance, . . . any person who violates any of the provisions\\n of subsection (1) of this section:\\n\\n (I) In the case of a controlled substance listed in schedule I or II of part 2\\n of this article, commits:\\n\\n (A) A class 3 felony; except that a person commits a class 4 felony if such\\n violation is based on the possession of a controlled substance listed in\\n schedule II unless otherwise provided in paragraph (a) of subsection (3)\\n of this section[.]\\n\\n ....\\n\\n (2.3)(a) Any person who commits the offense of possession in violation\\n of the provisions of subsection (1) of this section by possessing any\\n material, compound, mixture, or preparation, weighing one gram or less\\n that contains any quantity of a controlled substance listed in schedules I\\n through IV of part 2 of this article commits:\\n\\n (I) A class 6 felony[.]\\n\\nColo. Rev. Stat. § 18-18-405 (2006).2\\n\\n\\n\\n 2\\n Since 2006, the Colorado legislature has revised § 18-18-405 several times.\\nSee, e.g., H.B. 10-1352, 67th Gen. Assemb., 2d Reg. Sess, ch. 259, 2010 Colo. Sess.\\nLaws 1162, 1164 (striking simple possession from § 18-18-405(1)(a)’s list of\\nproscriptions).\\n\\n 5\\n\\f In August 2007, Almanza-Vigil pleaded guilty to count 1, “selling or\\n\\ndistributing” methamphetamine. In exchange, the state dismissed the remaining five\\n\\ncharges. The state court’s “sentence order” reflects this bargain. Suppl. R. vol. 2 at 5.\\n\\nThe order shows Almanza-Vigil’s “Plea of Guilty” to count 1, “18-18-405(1),\\n\\n(2)(a)(I)(A) – Controlled subst-Distribute s,” a class 3 felony, and lists counts 2, 3, 4,\\n\\n5, and 6—two more distribution charges (also class 3 felonies) and three possession\\n\\ncharges (two class 4 felonies and one class 6 felony)—as “Dism by DA.” Suppl. R.\\n\\nvol. 2 at 5. The court sentenced Almanza-Vigil to serve four years in state prison.\\n\\n Two years passed. Then, prison officials informed Almanza-Vigil (whose\\n\\nparole was approaching) that the federal government had issued an immigration hold.\\n\\n“[Y]ou’re going to be going to Mexico,” he remembers being told. R. vol. 1 at\\n\\n154:25. And from that point on, he claims, he “never thought” that he would be able\\n\\nto challenge his removal. R. vol. 1 at 155:1.\\n\\n In April 2009, the state released Almanza-Vigil to ICE agents, who detained\\n\\nhim pending his removal. The Department of Homeland Security had decided that\\n\\nAlmanza-Vigil’s Colorado conviction met 8 U.S.C. § 1101(a)(43)(B)’s definition of\\n\\nan “aggravated felony,” making him deportable under 8 U.S.C. § 1227(a)(2)(A)(iii)\\n\\nand, because he lacked permanent-resident status, subjecting him to expedited\\n\\n\\n\\n\\n 6\\n\\fremoval proceedings under 8 U.S.C. § 1228(b) and 8 C.F.R. § 238.1(b), (d), without\\n\\na hearing before an immigration judge.3\\n\\n The record on appeal contains the two forms that the government claims to\\n\\nhave given Almanza-Vigil during these proceedings: a two-page Notice of Intent\\n\\n(exhibit 4) and a one-page Certificate of Service (exhibit 5). These forms are, in the\\n\\ndistrict court’s words, “a mess.” R. vol. 1 at 354 ¶ 10.\\n\\n Exhibit 4 is titled, “Notice of Intent to Issue a Final Administrative Removal\\n\\nOrder.” Suppl. R. vol. 2 at 6. Below that title, the Notice is addressed to “Oscar\\n\\nALAMANZA-VIGIL” (a misspelling repeated on the next page). Id. at 6, 7. The\\n\\nNotice then sets forth the “Charge”: “You are deportable under . . . 8 U.S.C.\\n\\n§ 1227(a)(2)(A)(iii), as amended, because you have been convicted of an aggravated\\n\\nfelony . . . .” Suppl. R. vol. 2 at 6. And it explains “Your Rights and\\n\\n\\n\\n 3\\n In expedited removal proceedings, a noncitizen with an aggravated-felony\\nconviction is “conclusively presumed to be deportable,” 8 U.S.C. § 1228(c), and\\nineligible for discretionary relief from removal, id. § 1228(b)(5). Still, the expedited-\\nremoval statute and its accompanying regulations protect noncitizens’ rights to\\nprocedural due process. See id. § 1228(b)(4). Section 1228(b)(3) requires the\\ngovernment to wait fourteen days after issuing the final removal order and before\\nexecuting it to allow the noncitizen “an opportunity to apply for judicial review” of\\nthe order—unless the noncitizen waives this waiting period. Under § 1228(b)(3), the\\ngovernment also must give the noncitizen reasonable notice of the charges against\\nhim, as well as an opportunity to rebut them, and allow the noncitizen “the privilege\\nof being represented (at no expense to the government)” by counsel. Id.\\n§ 1228(b)(4)(A)–(C). Agency regulations add more specific mandates: A noncitizen\\nmust be served with “Form I-851, Notice of Intent to Issue a Final Administrative\\nDeportation Order,” which must inform the noncitizen of his rights to representation\\nand to judicial review, among other rights, and provide him with a list of free legal\\nservices. 8 C.F.R. § 238.1(b)(1)–(2).\\n\\n 7\\n\\fResponsibilities,” including (1) that “you may contact legal counsel from the list of\\n\\navailable services provided to you” (a list that the government didn’t provide) and\\n\\n(2) that if you want to exercise your rights to rebut the charge or to seek judicial\\n\\nreview, the government must receive your written response within ten days. Id. But\\n\\nthe Notice lacks a designated space for Almanza-Vigil’s signature. And while the\\n\\nNotice’s first page claims to be “Form I-851,” the next page identifies itself as “Form\\n\\nI-831 Continuation Page” and purports to be the third of three pages. Id. at 7. Above\\n\\nthis puzzling footer, the Continuation Page contains a typewritten paragraph alleging,\\n\\n“You were[] . . . convicted . . . for the offense of, Controlled Substance-Distribute\\n\\nSch. 2; to wit: Methamphetamine in violation of C.R.S. 18-18-405(1), (2)(a)(I)(A) for\\n\\nwhich the term of imprisonment was 4 years.” Id.\\n\\n Exhibit 5, the Certificate of Service, begins with an ICE agent’s signed\\n\\nstatement: “I served this Notice of Intent. I have determined that the person served\\n\\nwith this document is the individual named on the other side of the form.” Id. at 8.\\n\\n(The contents of the “other side” remain a mystery: the district court deduced only\\n\\nthat “the other side” was probably not the Certificate, based on the government’s\\n\\nintroduction of the Notice and the Certificate as separate exhibits.) Beneath two\\n\\nchecked boxes—one admitting “the allegations and charge in this Notice of Intent,”\\n\\nanother waiving “the right to remain in the United States . . . to apply for judicial\\n\\nreview”—the Certificate has three lines: on the first is a hand-drawn “x” and\\n\\nAlmanza-Vigil’s signature; on the second, someone printed “Oscar Almanza”; and on\\n\\nthe third is the date, April 6, 2009. Id.\\n\\n 8\\n\\f In the government’s view, Almanza-Vigil knowingly waived his right to\\n\\ncontest his removal by signing the Certificate. So, on April 6 (the same day that he\\n\\nsigned it), the Department of Homeland Security issued a final administrative\\n\\nremoval order declaring (1) that Almanza-Vigil is not a U.S. citizen, (2) that he has\\n\\nnever been lawfully admitted for permanent residence to the United States, and\\n\\n(3) that he has been convicted of an aggravated felony defined in 8 U.S.C.\\n\\n§ 1101(a)(43)(B). ICE executed the order a week later, on April 13, and an\\n\\nimmigration official witnessed Almanza-Vigil walk across the border near El Paso,\\n\\nTexas, and into Mexico.\\n\\n Six years later, in April 2015, a set of footprints in the New Mexico desert led\\n\\nborder-patrol agents to Almanza-Vigil, who was hiding in a mesquite bush near the\\n\\nborder fence. The agents arrested him, suspecting that he’d entered illegally. After\\n\\nhis processing revealed the 2009 removal order, prosecutors filed a criminal\\n\\ncomplaint in the U.S. District Court for the District of New Mexico, alleging that\\n\\nAlmanza-Vigil had reentered the country in violation of an outstanding removal order\\n\\nthat had followed an aggravated-felony conviction. Three months later, a grand jury\\n\\nreturned an indictment charging him with illegal reentry in violation of 8 U.S.C.\\n\\n§ 1326(a) and (b).\\n\\n Almanza-Vigil moved to dismiss the indictment by attacking his 2009 removal\\n\\norder—the government’s proof that he had reentered illegally (a felony under\\n\\n8 U.S.C. § 1326) rather than merely entered improperly (a misdemeanor under\\n\\n§ 1325). The 2009 removal order was “improperly issued,” he claimed, because he\\n\\n 9\\n\\fhad never been convicted of an aggravated felony. R. vol. 1 at 54. Had the\\n\\ngovernment realized this, he argued, he would not have been put in expedited\\n\\nremoval proceedings, and he could have applied for (and likely received)\\n\\ndiscretionary relief from removal. But the district court denied the motion and\\n\\nforeclosed Almanza-Vigil’s collateral attack. Twice, Almanza-Vigil asked the court\\n\\nto reconsider this ruling, but twice, the court refused.\\n\\n On December 14, 2015, after denying Almanza-Vigil’s first motion to\\n\\nreconsider, the court held a bench trial. “[B]ased upon the undisputed testimony” that\\n\\nhe had returned to the United States without permission after being deported, the\\n\\ncourt found Almanza-Vigil guilty of violating 8 U.S.C. § 1326(a) and (b). Four\\n\\nweeks later, after denying his second motion to reconsider, the court entered\\n\\njudgment and sentenced Almanza-Vigil to 635 days in prison (approximately time\\n\\nserved—he had been in custody since his arrest on April 19, 2015).4 He immediately\\n\\nappealed.\\n\\n DISCUSSION\\n\\n Almanza-Vigil challenges the district court’s refusal to dismiss the illegal-\\n\\nreentry indictment. On appeal, as in the district court, he disputes the validity of his\\n\\n2009 removal order by arguing that it was entered without due process. When a\\n\\nnoncitizen attacks the constitutionality of a previous removal proceeding in this way,\\n\\nhe presents a mixed question of law and fact that we review de novo. United States v.\\n\\n\\n 4\\n After his release, he returned to Mexico.\\n\\n 10\\n\\fAguirre-Tello, 353 F.3d 1199, 1204 (10th Cir. 2004). But before addressing the\\n\\nmerits of Almanza-Vigil’s appeal, we must narrow the question. To do so, we weave\\n\\ntogether the appeal’s statutory and procedural context.\\n\\n A. How Can a Noncitizen Prosecuted for Illegal Reentry Collaterally\\n Attack the Underlying Removal Order?\\n\\n When the government prosecutes a noncitizen for illegal reentry, it typically\\n\\nmust prove two things: (1) that the noncitizen left the United States with an\\n\\noutstanding order of removal against him and (2) that afterward, the noncitizen\\n\\nentered, tried to enter, or was found in the United States. 8 U.S.C. § 1326(a).\\n\\n When the government offers a previous removal order as evidence of the first\\n\\nelement, the Fifth Amendment protects the noncitizen’s right to challenge that order,\\n\\neven years after the time for appeal has passed and the order has become final.\\n\\nUnited States v. Mendoza-Lopez, 481 U.S. 828, 837–39 (1987); accord United\\n\\nStates v. Adame-Orozco, 607 F.3d 647, 651 (10th Cir. 2010). Congress codified this\\n\\nright in 8 U.S.C. § 1326(d), subject to a noncitizen’s meeting three conditions. See\\n\\nAdame-Orozco, 607 F.3d at 651. To collaterally attack a previous removal order, the\\n\\nnoncitizen must show (1) that he exhausted all administrative remedies available to\\n\\ncontest the previous removal order, (2) that the previous removal proceedings\\n\\ndeprived him of the opportunity to seek judicial review, and (3) that the previous\\n\\norder’s entry was fundamentally unfair. 8 U.S.C. § 1326(d).\\n\\n Here, the district court concluded that, although Almanza-Vigil could satisfy\\n\\nthe first two conditions (administrative exhaustion and denial of judicial review) he\\n\\n\\n 11\\n\\fcould not demonstrate the third condition, that the entry of the 2009 removal order\\n\\nwas fundamentally unfair. That conclusion rested on two, alternate grounds: first, that\\n\\nthe government had correctly classified Almanza-Vigil’s conviction as an aggravated\\n\\nfelony; and second, that the government’s decision to classify his conviction as an\\n\\naggravated felony had not prejudiced him. And because a collateral attack can’t\\n\\nsurvive the failure to meet any of § 1326(d)’s three conditions, the district court\\n\\nrejected Almanza-Vigil’s challenge to the 2009 order’s validity.\\n\\n So the appeal begins with one question: Does Almanza-Vigil’s conviction fit\\n\\nthe INA’s definition of an aggravated felony? Because we answer no, the appeal\\n\\npresents a second question: Did misclassifying the conviction so prejudice Almanza-\\n\\nVigil that the entry of his previous removal order was fundamentally unfair? Because\\n\\nwe again answer no, our inquiry ends there—we can uphold the dismissal of his\\n\\ncollateral attack without reaching § 1326(d)’s other conditions.\\n\\n B. Is “Selling or Distributing” Methamphetamine an Aggravated\\n Felony?\\n\\n The parties dispute whether Almanza-Vigil’s conviction for “selling or\\n\\ndistributing” methamphetamine, see Colo. Rev. Stat. § 18-18-405(a) (2006), qualifies\\n\\nas an aggravated felony under the INA—specifically, whether it meets the definition\\n\\nin 8 U.S.C. § 1101(a)(43)(B): “illicit trafficking in a controlled substance (as defined\\n\\nin [21 U.S.C. § 802]), including a drug trafficking crime (as defined in [18 U.S.C.\\n\\n§ 924(c)]).” We first explain how to compare a state offense to the INA’s definition\\n\\n\\n\\n\\n 12\\n\\fof an aggravated felony. Then, we apply those principles to resolve the parties’\\n\\ndispute.\\n\\n 1. The Categorical and Modified Categorical Approaches to\\n Classifying Offenses\\n\\n “When the government alleges that a state conviction qualifies as an\\n\\n‘aggravated felony’ under the INA, we generally employ a ‘categorical approach’ to\\n\\ndetermine whether the state offense is comparable to an offense listed in the INA.”\\n\\nMoncrieffe v. Holder, 569 U.S. 184, 190 (2013) (citing Nijhawan v. Holder, 557 U.S.\\n\\n29, 33–38 (2009); Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185–87 (2007)). The\\n\\ncategorical approach asks whether the state offense’s definition matches “the\\n\\n‘generic’ federal definition of a corresponding aggravated felony.” Id. (quoting\\n\\nDuenas-Alvarez, 549 U.S. at 186). The state offense fits the generic offense only if it\\n\\n“necessarily” includes the generic federal offense. Id. (quoting Shepard v. United\\n\\nStates, 544 U.S. 13, 24 (2005) (plurality opinion)). We therefore presume that the\\n\\nstate conviction rested on “‘the least of th[e] acts’ criminalized,” then determine\\n\\nwhether the generic federal offense encompasses “even those acts.” Id. at 190–91\\n\\n(alteration in original) (quoting Johnson v. United States, 559 U.S. 133, 137 (2010)).\\n\\n “Whether the noncitizen’s actual conduct involved such facts ‘is quite\\n\\nirrelevant.’” Id. at 190 (quoting United States ex rel. Guarino v. Uhl, 107 F.2d 399,\\n\\n400 (2d Cir. 1939)). The categorical approach focuses on an offense’s elements—the\\n\\n“constituent parts” of its legal definition, “the things the ‘prosecution must prove to\\n\\nsustain a conviction.’” Mathis v. United States, 136 S. Ct. 2243, 2248 (2016)\\n\\n\\n 13\\n\\f(quoting Elements of a Crime, Black’s Law Dictionary (10th ed. 2014)). If the\\n\\ndefendant goes to trial, then the elements are “what the jury must find beyond a\\n\\nreasonable doubt.” Id. (citing Richardson, 526 U.S. at 817). And if the defendant\\n\\npleads guilty, then the elements are what he “necessarily admits.” Id. (citing\\n\\nMcCarthy v. United States, 394 U.S. 456, 466 (1969)). Elements are abstract, in\\n\\ncontrast to “brute facts”—“mere real-world things[] extraneous to the crime’s legal\\n\\nrequirements,” which “need neither be found by a jury nor admitted by a defendant.”\\n\\nId. (first quoting Richardson v. United States, 526 U.S. 813, 817 (1999); and then\\n\\nciting Fact, Black’s Law Dictionary (10th ed. 2014)).\\n\\n When a state statute defines a single crime with a single—that is, indivisible—\\n\\nset of elements, the categorical approach is (relatively) “straightforward”: just “line[]\\n\\nup that crime’s elements alongside those of the generic offense and see[] if they\\n\\nmatch.” Id. But this comparison gets more complicated when a state statute is\\n\\ndivisible—that is, when it creates multiple crimes by listing multiple, alternative\\n\\nelements. Id. at 2249.5\\n\\n When a statute lists alternative elements, the modified categorical approach\\n\\nallows us to glimpse “a limited class of documents” from the previous conviction—\\n\\nthe indictment, the jury instructions, the plea agreement or colloquy—so that we can\\n\\n\\n\\n 5\\n Mathis gives the example of a California law against “‘the lawful or the\\nunlawful entry’ of a premises with intent to steal.” 136 S. Ct. at 2249. This law\\ncreates “two offenses, one more serious than the other.” Id. But only the more serious\\noffense, involving unlawful entry, matches generic federal burglary. Id.\\n\\n 14\\n\\ffigure out which alternative “was integral to the defendant’s conviction (that is,\\n\\nwhich was necessarily found or admitted).” Id. (citing Shepard, 544 U.S. at 26;\\n\\nTaylor, 495 U.S. at 602). Once we’ve discerned which crime, comprising which\\n\\nelements, the noncitizen was convicted of, we can “compare that crime, as the\\n\\ncategorical approach commands, with the relevant generic offense.” Id. But “the\\n\\nmodified categorical approach serves—and serves solely—as a tool to identify the\\n\\nelements of a crime of conviction when a statute’s disjunctive phrasing renders one\\n\\n(or more) of them opaque.” Id. at 2253 (citing Descamps v. United States, 570 U.S.\\n\\n254, 263–64 (2013)). We can’t “repurpose” it to explore whether a conviction, “even\\n\\nthough for a too-broad crime, rested on facts (or otherwise said, involved means) that\\n\\nalso could have satisfied the elements of a generic offense.” Id. at 2254.\\n\\n So, when we encounter a statute that lists alternatives, we face a threshold\\n\\nquestion: does the list enumerate alternative elements, which would allow us to use\\n\\nthe modified categorical approach, or alternative means, which would not?\\n\\n In Mathis, a state-court decision “definitively answer[ed]” the question\\n\\nwhether Iowa Code § 702.12, which prohibits unlawful entry into “any building,\\n\\nstructure, [or] land, water, or air vehicle,” creates alternative crimes or illustrates\\n\\nalternative methods of committing the same crime. Id. at 2256. In State v. Duncan,\\n\\nthe Iowa Supreme Court held that a jury need not unanimously agree on the burgled\\n\\npremises—there, either a boat or a marina—to convict the defendant of burglary;\\n\\neach location was an “alternative method of committing a single crime.” 312 N.W.2d\\n\\n519, 523 (Iowa 1981). Applying Duncan’s logic, Mathis concluded that the Iowa\\n\\n 15\\n\\fstatute’s list of locations “[laid] out alternative ways of satisfying a single, locational\\n\\nelement.” Mathis, 136 S. Ct. at 2250, 2256.6\\n\\n In other cases, the statute itself might resolve the means-or-elements question.\\n\\nId. at 2256. If each alternative carries a different penalty, then to comply with\\n\\nApprendi v. New Jersey, 530 U.S. 466, 490 (2000), the jury must unanimously agree\\n\\non one of them, meaning that the alternatives must be elements. Mathis, 136 S. Ct. at\\n\\n2256 (citing, among other state statutes, Colo. Rev. Stat. § 18-4-203 (2015), which\\n\\ndistinguishes second-degree burglary of a dwelling, a class 3 felony, from second-\\n\\ndegree burglary of any other “building or occupied structure,” a class 4 felony).\\n\\nOther state laws may specify the contents of a charging document: what things\\n\\nprosecutors must charge (elements) and what things they need not charge (means). Id.\\n\\n(citing Cal. Penal Code § 952 (West 2008)).\\n\\n In still other cases, though, state law might fail “to provide clear answers.” Id.\\n\\nThen, the modified categorical approach permits us to glimpse the record of the\\n\\nprevious conviction to determine whether the listed items are elements of the offense.\\n\\nId. at 2256–57 (quoting Rendon v. Holder, 782 F.3d 466, 473–74 (9th Cir. 2015)\\n\\n(Kozinski, J., dissenting from the denial of rehearing en banc)). If these documents\\n\\nreference one alternative “to the exclusion of all others,” that indicates the statute\\n\\n\\n 6\\n Compared to generic burglary, which protects any “building or other\\nstructure,” Iowa burglary reached more places, like vehicles. Mathis, 136 S. Ct. at\\n2250 (quoting Taylor, 495 U.S. at 598). And because the offenses’ locational\\nelements didn’t line up, Mathis concluded that the two did not categorically match.\\nSee id. at 2256–57.\\n\\n 16\\n\\flists several, alternative elements, each defining a separate crime. Id. at 2257. Then—\\n\\nand only then—can we use the documents to identify the crime of conviction. Id.\\n\\n“Conversely,” though, if the indictment and jury instructions reiterate the statutory\\n\\nlist (“building, structure, or vehicle”) or use “a single umbrella term” (like\\n\\n“premises”), that indicates the statute lists alternative means of fulfilling one\\n\\nelement. Id. And if so, we have “no call to decide which of the statutory alternatives\\n\\nwas at issue in the earlier prosecution.” Id. at 2256.\\n\\n Next, we consider what this means for Almanza-Vigil.\\n\\n 2. Does Almanza-Vigil’s Colorado Felony Categorically Match\\n an Aggravated Felony Under the INA?\\n\\n Almanza-Vigil argues that Colorado Revised Statutes § 18-18-405(1)(a)\\n\\n(2006) sweeps too broadly to fit the generic federal offense at issue here—the\\n\\naggravated felony of “illicit trafficking in a controlled substance (as defined in\\n\\n[21 U.S.C. § 802]), including a drug trafficking crime (as defined in [18 U.S.C.\\n\\n§ 924(c)].” 8 U.S.C. § 1101(a)(43)(B).\\n\\n The generic offense encompasses any offense (state or federal) that “proscribes\\n\\nconduct punishable as a felony” under the Controlled Substances Act (CSA), Pub. L.\\n\\nNo. 91-513, 84 Stat. 1242 (1970) (codified as amended at 21 U.S.C. §§ 801–904).\\n\\nLopez v. Gonzales, 549 U.S. 47, 60 (2006); see also Moncrieffe, 569 U.S. at 188.7 By\\n\\n\\n 7\\n To explain this conclusion, Moncrieffe noted that 18 U.S.C. § 924(c)(2)\\ndefines a “drug trafficking crime” as “any felony punishable under” three federal\\nstatutes, including the CSA, and that 18 U.S.C. § 3559(a)(5) classifies an offense as a\\n“felony” if “the maximum term of imprisonment authorized” is more than a year.\\n\\n 17\\n\\fcomparison, the state statute that Almanza-Vigil pleaded guilty to violating, Colorado\\n\\nRevised Statutes § 18-18-405(1)(a) (2006), makes it unlawful “to manufacture,\\n\\ndispense, sell, distribute, possess, or to possess with intent to manufacture, dispense,\\n\\nsell, or distribute a controlled substance” (among other acts). As even the government\\n\\nconcedes, the least of the acts criminalized—simple possession—is not a felony\\n\\nunder the CSA. See 21 U.S.C. § 844(a) (setting a ceiling of a year’s imprisonment for\\n\\na defendant’s first possession conviction); accord Lopez, 549 U.S. at 53. So, if the\\n\\nstatute is indivisible, then Almanza-Vigil is correct—it doesn’t match the generic\\n\\noffense.\\n\\n But the government contends that the Colorado statute is divisible and that,\\n\\nunder the modified categorical approach, Almanza-Vigil pleaded guilty to a crime the\\n\\ngovernment terms “distribution of methamphetamine,” which it claims “clearly\\n\\nconstitutes” the generic federal crime of illicit drug trafficking. Appellee’s Answer\\n\\nBr. at 26. We disagree.\\n\\n Last year, two Tenth Circuit cases considered the scope of a “controlled\\n\\nsubstance offense,” one of two categories of previous convictions that enhance the\\n\\nsentence of a “career offender” under the federal sentencing guidelines. United\\n\\nStates v. McKibbon, 878 F.3d 967, 971–76 (10th Cir. 2017); United States v.\\n\\nMadkins, 866 F.3d 1136, 1144–48 (10th Cir. 2017); see also U.S. Sentencing\\n\\nGuidelines Manual § 4B1.1(a) (U.S. Sentencing Comm’n 2018). Like the INA’s\\n\\ndefinition of a drug-trafficking offense, the guidelines’ definition of a “controlled\\n\\nsubstance offense” encompasses all state or federal offenses (1) that are punishable\\n\\n 18\\n\\fby more than a year’s imprisonment and (2) that proscribe the “manufacture, import,\\n\\nexport, distribution, or dispensing of a controlled substance,” or the “aiding[,] . . .\\n\\nabetting, conspiring, [or] attempting to commit such offenses.” U.S.S.G. § 4B1.2(b)\\n\\n& cmt. n.1. To this definition, Madkins and McKibbon hitched the CSA’s definition\\n\\nof distribution: “delivery” of the controlled substance. 21 U.S.C. § 802(11); see also\\n\\nMcKibbon, 878 F.3d at 972; Madkins, 866 F.3d at 1144.\\n\\n Both decisions then compared that definition to the defendants’ previous\\n\\nconvictions: Madkins’s convictions for the Kansas crimes of “possession with intent\\n\\nto sell, deliver, or distribute” cocaine and marijuana, and McKibbon’s conviction for\\n\\nthe Colorado crime at issue here (albeit a newer iteration, which had dropped simple\\n\\npossession from its list of proscribed acts). Madkins, 866 F.3d at 1145 (quoting\\n\\nKan. Stat. Ann. §§ 65-4161(a), 65-4163(a)(3) (2001)); McKibbon, 878 F.3d at 971–\\n\\n74 (citing Colo. Rev. Stat. § 18-18-405(1)(a) (2014)). The McKibbon court noted that\\n\\nColorado’s uniform controlled-substances act defines a “sale” to include “a barter, an\\n\\nexchange, or a gift, or an offer therefor.” Colo. Rev. Stat. § 18-18-403(1) (emphasis\\n\\nadded); McKibbon, 878 F.3d at 971. Likewise, the Madkins court observed that\\n\\nKansas law defines a “sale” to include an “offer to sell.” 866 F.3d at 1145.\\n\\nIncorporating each state’s definition of a “sale” into its proscription on “selling or\\n\\ndistributing” a controlled substance, both Madkins and McKibbon determined that the\\n\\nstates’ drug laws swept in more conduct—including offers to sell a controlled\\n\\nsubstance—than fit within the guidelines’ definition of a “controlled substance\\n\\noffense.” McKibbon, 878 F.3d at 972; Madkins, 866 F.3d at 1145–46 (citing United\\n\\n 19\\n\\fStates v. Hinkle, 832 F.3d 569, 576–77 (5th Cir. 2017) (concluding that a similar\\n\\nTexas statute was broader than the guidelines’ definition); United States v. Savage,\\n\\n542 F.3d 959, 966 (2d Cir. 2008) (concluding that a similar Connecticut statute was\\n\\nlikewise “overly inclusive”)). And because the elements didn’t line up, there was a\\n\\ncategorical mismatch.\\n\\n That was so, Madkins and McKibbon concluded, even though a “controlled\\n\\nsubstance offense” includes an attempt to distribute the controlled substance. See\\n\\nU.S.S.G. § 4B1.2 cmt. n.1. As Madkins explained, “an attempt to commit a crime\\n\\nrequires the intent to commit the crime and overt acts in furtherance of that intent.”\\n\\n866 F.3d at 1147 (quoting United States v. Taylor, 413 F.3d 1146, 1155 (10th Cir.\\n\\n2005)). Yet a person can offer to sell a controlled substance (an overt act) without\\n\\nintending to complete the sale. Id. Stated otherwise, an offer to sell can be fraudulent,\\n\\n“such as when one offers to sell the Brooklyn Bridge.” Id. (quoting Savage, 542 F.3d\\n\\nat 965). Unless we read in limiting language (which is out of bounds during statutory\\n\\nconstruction), a state law that proscribes all “offers” to sell a controlled substance\\n\\ncovers both the bona fide and the fraudulent. And because a fraudulent offer lacks\\n\\n“the intent to sell or distribute” that an attempt requires, a conviction for “selling or\\n\\ndistributing” a controlled substance (in any state that defines “sale” to include all\\n\\noffers) criminalizes a broader swath of conduct than the guidelines’ definition of a\\n\\n“controlled substance offense.” Id. at 1148.\\n\\n Madkins and (four months later) McKibbon thus both concluded that the\\n\\nguidelines’ definition of a “controlled substance offense” excludes convictions under\\n\\n 20\\n\\fstate statutes that proscribe “offers” to sell a controlled substance. McKibbon,\\n\\n878 F.3d at 972; Madkins, 866 F.3d at 1145. The least of the acts criminalized under\\n\\nsuch a state statute is a fraudulent offer to sell a controlled substance, which does not\\n\\nconstitute a “controlled substance offense” under the guidelines. Cf. Moncrieffe,\\n\\n569 U.S. at 191 (quoting Johnson, 559 U.S. at 137). So, “the two are not a\\n\\ncategorical match.” Madkins, 866 F.3d at 1147.\\n\\n In reaching this conclusion, McKibbon addressed but rejected the\\n\\ngovernment’s contention (which it raises again here) that Colorado Revised Statutes\\n\\n§ 18-18-405(1)(a) is divisible, “setting forth multiple elements of multiple criminal\\n\\noffenses, including manufacturing, dispensing, distributing, selling, or offering to sell\\n\\na controlled substance.” 878 F.3d at 974. If the government’s argument were correct,\\n\\nthen the court could have used the modified categorical approach to determine the\\n\\noffense to which McKibbon had pleaded guilty (and then compared that offense to\\n\\nthe guidelines’ definition). Id. But the court deemed the statute indivisible based on\\n\\nthe Colorado Supreme Court’s decision in People v. Abiodun, 111 P.3d 462 (Colo.\\n\\n2005). McKibbon, 878 F.3d at 974–75. As Mathis suggested it might, the Colorado\\n\\ncourt’s decision definitively answered the elements-or-means question—and its\\n\\nanswer was “means.” Id. at 974 (citing Mathis, 136 S. Ct. at 2256).\\n\\n\\n\\n\\n 21\\n\\f In Abiodun, the Colorado Supreme Court held that Colorado Revised Statutes\\n\\n§ 18-18-4058 defines a single offense for double-jeopardy purposes:\\n\\n Nothing in the specific language of the statute or the history of its\\n enactment suggests an intent to create a separate offense for each\\n proscribed act. On the contrary, the scope and structure of the proscriptive\\n provision, combined with sentencing provisions differentiating\\n punishments on the basis of the quantum of drugs (rather than the act)\\n involved, strongly points to the creation of a single crime, the gravamen\\n of which is preventing the unauthorized delivery of a “particular quantity\\n of a particular contraband substance.” . . . . Rather than completely\\n separate offenses, the statute strongly suggests an intent to “criminalize\\n successive stages of a single undertaking,” . . . “encompass[ing] every act\\n and activity which could lead to the proliferation of drug traffic.”\\n\\n111 P.3d at 466–67 (alteration in original) (citations omitted) (first quoting Lopez v.\\n\\nState, 108 S.W.3d 293, 299 (Tex. Crim. App.2003); then quoting United States v.\\n\\nMendoza, 902 F.2d 693, 697 (8th Cir. 1990); and then quoting United States v.\\n\\nGomez, 593 F.3d 210, 213 (3d Cir. 1979)). In McKibbon’s view, Abiodun squarely\\n\\naddressed divisibility by “holding that the state legislature intended to create a single\\n\\nunitary offense when it enacted the ‘alternatively-phrased’ § 18-18-405(1)(a).”\\n\\nMcKibbon, 878 F.3d at 975 (quoting Mathis, 136 S. Ct. at 2249). Not only that,\\n\\nMcKibbon added, Abiodun interpreted the Colorado statute to dole out the same\\n\\npunishments regardless of “whether a defendant manufactured or distributed or\\n\\noffered to sell a controlled substance.” Id. (citing Mathis, 136 S. Ct. at 2256).\\n\\n\\n 8\\n Abiodun reviewed convictions that occurred sometime between 2001 and\\n2003, when the drug laws were the same as in 2006 (Almanza-Vigil’s day)—and\\nwhen § 18-18-405(1)(a) proscribed simple possession. See People v. Abiodun,\\n87 P.3d 164, 165 (Colo. App. 2003). The Colorado legislature struck simple\\npossession only in 2010. See supra note 2.\\n\\n 22\\n\\f Yet even if Abiodun’s message on divisibility were uncertain, Mathis’s final\\n\\nsuggestion—“if state law fails to provide clear answers”—allowed the McKibbon\\n\\ncourt to “peek” at the record of the previous conviction. Id. at 976 (quoting Mathis,\\n\\n136 S. Ct. at 2256–57). And there, the court saw that McKibbon had pleaded guilty to\\n\\nviolating Colorado Revised Statutes § 18-18-405(1)(a) by “either selling or\\n\\ndistributing heroin.” Id. So under Mathis, the court concluded, McKibbon’s previous\\n\\nrecord indicated that “selling or distributing” a controlled substance were alternative\\n\\nmeans of committing a single, indivisible offense. Id. (citing Mathis, 136 S. Ct. at\\n\\n2248).9\\n\\n Madkins and McKibbon thus crafted a general rule: if state law criminalizes\\n\\nfraudulent offers to sell a controlled substance, then a conviction under that state law\\n\\nis a categorical mismatch for the guidelines’ generic “controlled substance offense.”\\n\\nHere, we take their logic another step, into the immigration context. Like the generic\\n\\n“controlled substance offense” under the guidelines, the generic offense of “illicit\\n\\ntrafficking in a controlled substance” under the INA encompasses all state offenses\\n\\nthat are felonies under the CSA. Compare Lopez, 569 U.S. at 60 (defining the scope\\n\\nof “illicit trafficking in a controlled substance” under 8 U.S.C. § 1101(a)(43)(B)),\\n\\n\\n\\n 9\\n Madkins also addressed divisibility, but it deemed the Kansas statutes\\ndivisible. 866 F.3d at 1145 (discussing Kan. Stat. Ann. §§ 65-4151(a),\\n65-4163(a)(3)). That didn’t matter in the end, though, because Madkins had pleaded\\nguilty to possession with intent to sell cocaine and marijuana. Id. And the court\\ndetermined that under Kansas law, these offenses covered possession with the intent\\nto offer to sell cocaine and marijuana. See id.\\n\\n 23\\n\\fwith McKibbon, 878 F.3d at 972, and Madkins, 866 F.3d at 1144 (defining the scope\\n\\nof a “controlled substance offense” under U.S.S.G. § 4B1.2(b)). And according to\\n\\nMadkins and McKibbon, the felony offenses of distribution and attempted\\n\\ndistribution under the CSA exclude fraudulent offers to sell. See 21 U.S.C.\\n\\n§§ 802(11), 802(8), 841(a)(1) (prohibiting only the actual or attempted delivery of a\\n\\ncontrolled substance). So, a state statute that proscribes all offers to sell a controlled\\n\\nsubstance, including fraudulent ones, criminalizes more conduct than (and is a\\n\\ncategorical mismatch for) the INA’s definition of “illicit trafficking in a controlled\\n\\nsubstance.” See 8 U.S.C. § 1101(a)(43)(B).\\n\\n As for the state statute at issue here, McKibbon further tells us that Colorado\\n\\nRevised Statutes § 18-18-405(1)(a) is indivisible—at least to the extent that “selling\\n\\nor distributing” a controlled substance are alternative means of committing a single\\n\\noffense. McKibbon, 878 F.3d at 974; see also id. at 976. McKibbon thus specifically\\n\\nrejected the argument that the government makes here: that we can use the modified\\n\\ncategorical approach to define Almanza-Vigil’s crime of conviction more narrowly,\\n\\nas “distributing” methamphetamine. See id. at 974–76.\\n\\n And like in McKibbon, even if we do use the modified categorical approach to\\n\\n“peek” at the record of Almanza-Vigil’s previous conviction, we see that he was\\n\\nconvicted of “selling or distributing” methamphetamine. Of the six counts in the\\n\\ncomplaint, he pleaded guilty to the first:\\n\\n COUNT 1 - DISTRIBUTION OF A CONTROLLED SUBSTANCE -\\n SCHEDULE II (F-3)\\n\\n\\n 24\\n\\f On or About September 15, 2006, OSCAR ALMANZA-VIGIL\\n unlawfully, feloniously, and knowingly sold or distributed\\n METHAMPHETAMINE, a schedule II controlled substance; in violation\\n of section 18-18-405(1),(2)(a)(I)(A), C.R.S.\\n\\nSuppl. R. vol. 2 at 3 (bolding removed). And according to Mathis, when an\\n\\nindictment reiterates the statute’s alternatives (here: “sold or distributed”), it’s “as\\n\\nclear an indication as any that each alternative is only a possible means of\\n\\ncommission, not an element that the prosecutor must prove to a jury beyond a\\n\\nreasonable doubt.” 136 S. Ct. at 2257. Nor does it matter that when pressed for space,\\n\\nthe state-court judgment labeled the charge “Controlled subst-Distribute.” Suppl. R.\\n\\nvol. 2 at 5. The modified categorical approach limits our record inquiry “to the terms\\n\\nof the charging document, the terms of a plea agreement or transcript of\\n\\ncolloquy . . . , or to some comparable judicial record of this information.” Shepard,\\n\\n544 U.S. at 26; see also Mathis, 136 S. Ct. at 2249. And here, the charging language\\n\\nin count one shows that Almanza-Vigil pleaded guilty to “selling or distributing”\\n\\nmethamphetamine. Suppl. R. vol. 2 at 3.\\n\\n Accordingly, it doesn’t matter whether we apply the categorical approach or\\n\\nthe modified categorical approach. Either way, Almanza-Vigil’s crime of conviction\\n\\nis “selling or distributing” a controlled substance in violation of Colorado Revised\\n\\nStatutes § 18-18-405(1)(a). And because that crime comprises fraudulent offers to\\n\\nsell a controlled substance, it does not categorically match the aggravated felony of\\n\\n“illicit trafficking in a controlled substance . . . , including a drug trafficking crime.”\\n\\n8 U.S.C. § 1101(a)(43)(B). Cf. McKibbon, 878 F.3d at 976.\\n\\n\\n 25\\n\\f That leaves a final question: Even though the government misclassified\\n\\nAlmanza-Vigil’s Colorado conviction as an aggravated felony, which resulted in\\n\\nexpedited removal proceedings and the denial of any opportunity for discretionary\\n\\nrelief, can he additionally show that the entry of his previous removal order was\\n\\n“fundamentally unfair”? 8 U.S.C. § 1326(d)(3).\\n\\n C. Did Misclassifying Almanza-Vigil’s Colorado Conviction Render\\n the Entry of his 2009 Removal Order Fundamentally Unfair?\\n\\n Almanza-Vigil argues that the government’s misclassification of his Colorado\\n\\nconviction as an aggravated felony prejudiced him because, outside expedited\\n\\nremoval proceedings, he could have applied for and received relief from removal,\\n\\nsuch as voluntary departure or cancellation of removal.10\\n\\n In Aguirre-Tello, we required a noncitizen alleging that the entry of a previous\\n\\nremoval order was fundamentally unfair to meet a reasonable-likelihood standard.\\n\\n353 F.3d at 1209; see also 8 U.S.C. § 1326(d)(3). To demonstrate fundamental\\n\\nunfairness, the noncitizen must establish a reasonable likelihood that, but for the\\n\\n\\n\\n\\n 10\\n We agree with Almanza-Vigil that S.E.C. v. Chenery Corp. would bar us\\nfrom upholding his removal order on grounds different from those stated in that\\norder. See 332 U.S. 194, 196 (1947) (“[A] reviewing court, in dealing with a\\ndetermination or judgment which an administrative agency alone is authorized to\\nmake, must judge the propriety of such action solely by the grounds invoked by the\\nagency.”). But 8 U.S.C. § 1326(d)(3) prohibits us from addressing the removal order\\nitself unless Almanza-Vigil can establish that the order’s entry was fundamentally\\nunfair. And as Almanza-Vigil’s arguments throughout this case show, the\\nfundamental-unfairness inquiry hinges on Almanza-Vigil’s chances of receiving\\nrelief from removal.\\n\\n\\n 26\\n\\fcomplained-of error, he would have avoided removal. Aguirre-Tello, 353 F.3d at\\n\\n1208 (quoting United States v. Calderon-Pena, 339 F.3d 320, 324 (5th Cir. 2003)).\\n\\nBut in a footnote, Aguirre-Tello noted “the inherent difficulty in demonstrating\\n\\nprejudice from the denial of eligibility for discretionary relief.” Id. at 1209 n.8 (citing\\n\\nMejia Rodriguez v. Reno, 178 F.3d 1139, 1148 (11th Cir. 1999)). The Aguirre-Tello\\n\\ncourt quoted Mejia-Rodriguez, where the Eleventh Circuit warned:\\n\\n An alien’s actual chances of receiving such discretionary relief\\n [suspension of deportation]11 are too speculative, and too far beyond the\\n capability of judicial review, to conclude that the alien has actually\\n suffered prejudice from being ineligible for suspension of\\n deportation . . . . Just as a court cannot review the inherently ‘subjective’\\n judgments made by the executive in deciding whether to commute a life\\n sentence, this Court cannot predict the subjective and fact-intensive\\n judgments that the Attorney General would make in deciding whether to\\n grant extraordinary relief, such as the suspension of deportation . . . . The\\n alien cannot demonstrate prejudice, much less substantial prejudice,\\n arising from the ineligibility for such an ‘act of grace’ because no\\n standards exist for a court to determine whether the executive would have\\n granted the extraordinary relief anyway.\\n\\nId. (quoting Mejia-Rodriguez, 178 F.3d at 1148).\\n\\n At the threshold, we disagree with the district court that Almanza-Vigil’s odds\\n\\nof receiving “an ‘act of grace’ in the form of discretionary relief” present an inquiry\\n\\n“too speculative” for judicial examination. R. vol. 1 at 470 (quoting Aguirre-Tello,\\n\\n353 F.3d at 1209 n.8). Aguirre-Tello itself did not consider the petitioning\\n\\n\\n\\n\\n 11\\n Under the current statutory scheme, “suspension of removal” corresponds to\\ncancellation of removal under 8 U.S.C. § 1229b. See Immigration and Naturalization\\nAct § 244, Pub. L. No. 82-414, 66 Stat. 163, 8 U.S.C. § 1254 (1994) (repealed).\\n\\n\\n 27\\n\\fnoncitizen’s claim too speculative, despite hinting at the “inherent difficulty” of\\n\\nsuccess. 353 F.3d at 1209 n.8. Instead, the court explored the likelihood that he could\\n\\nhave received “a § 212(c) waiver12 from deportation.” See id. at 1209–10.\\n\\nAccordingly, we will, too.\\n\\n We turn to whether, absent the government’s misclassification of his Colorado\\n\\nconviction as an aggravated felony, Almanza-Vigil had a reasonable likelihood of\\n\\nreceiving either cancellation of removal or voluntary departure.\\n\\n 1. Cancellation of Removal\\n\\n The INA gives the Attorney General discretion to cancel the removal of an\\n\\notherwise-removable, non-permanent-resident “alien” who:\\n\\n (A) has been physically present in the United States for a continuous\\n period of not less than 10 years immediately preceding the date of\\n [his] application [for cancellation of removal];\\n\\n (B) has been a person of good moral character during such period;\\n\\n (C) has not been convicted of an offense under [8 U.S.C.\\n §§ ]1182(a)(2) [including “any law or regulation of a State . . .\\n relating to a controlled substance (as defined in section 802 of Title\\n 21)”], 1227(a)(2) [including an aggravated felony or “any law or\\n regulation of a State . . . relating to a controlled substance”], or\\n\\n\\n\\n 12\\n Before Congress enacted the Antiterrorism and Effective Death Penalty Act\\n(AEDPA), section 212(c) of the INA, codified at 8 U.S.C. § 1182(c), gave the\\nAttorney General broad discretion to waive deportation for resident noncitizens. See\\nINS v. St. Cyr, 533 U.S. 289, 294–95 (2001). In 1996, AEDPA “reduced” the class of\\nnoncitizens eligible for such discretionary relief by identifying “a broad set of\\noffenses for which conviction would preclude such relief.” Id. at 297. Later that year,\\nCongress passed the Illegal Immigrant Reform and Immigrant Responsibility Act of\\n1996, which repealed 8 U.S.C. § 1182(c) and created 8 U.S.C. § 1229b, permitting\\n“cancellation of removal” for a much narrower class of resident noncitizens. Id.\\n\\n 28\\n\\f 1227(a)(3) [failure to register and falsification of documents] . . . ;\\n and\\n\\n (D) establishes that removal would result in exceptional and extremely\\n unusual hardship to the alien’s spouse, parent, or child, who is a\\n citizen of the United States or an alien lawfully admitted for\\n permanent residence.\\n\\n8 U.S.C. § 1229b(b)(1).\\n\\n Almanza-Vigil claims that, “had the relevant officials realized his conviction\\n\\nwas not an aggravated felony,” he would have had a reasonable likelihood of\\n\\nreceiving cancellation of removal. Appellant’s Brief-in-Chief at 37. He submits the\\n\\ntestimony of his immigration-law expert, Mr. Olsi Vrapi, a “Criminal immigration”\\n\\nlaw professor at the University of New Mexico School of Law and a practicing\\n\\nattorney who has represented hundreds of noncitizens in immigration proceedings. R.\\n\\nvol. 1 at 186:20. At the motion-to-dismiss hearing, Vrapi said that Almanza-Vigil\\n\\nwas “eligible for this form of relief” despite having pleaded guilty to “selling or\\n\\ndistributing” methamphetamine. R. vol. 1 at 206:25–207:1.\\n\\n We disagree. Though “selling or distributing” methamphetamine is not an\\n\\naggravated felony under the INA, it does violate “a[] law or regulation of a State . . .\\n\\nrelating to a controlled substance,” namely, Colorado Revised Statutes\\n\\n§ 18-18-405(1)(a). 8 U.S.C. §§ 1182(a)(2), 1227(a)(2). Almanza-Vigil’s Colorado\\n\\nconviction thus qualifies as an offense under both § 1182(a)(2) and § 1227(a)(2),\\n\\nwhich would have disqualified him from receiving cancellation of removal under\\n\\n8 U.S.C. § 1229b(b)(1)(C).\\n\\n\\n\\n 29\\n\\f 2. Voluntary Departure\\n\\n Compared to cancellation of removal, voluntary departure is available to a\\n\\nbroader class of noncitizens. The INA excludes only aggravated felons, 8 U.S.C.\\n\\n§ 1227(a)(2)(A)(iii), those engaged in terrorist activities, id. § 1227(a)(4)(B), and\\n\\nsome noncitizens “previously permitted to so depart,” from this form of relief. See id.\\n\\n§§ 1229c(a)(1), 1229c(c). Any other noncitizen may seek permission to depart at his\\n\\nown expense instead of commencing, or before completing, removal proceedings. See\\n\\nid. § 1229c(a)(1). Alternatively, at the end of removal proceedings, a noncitizen who\\n\\nmeets certain conditions may seek an order from the immigration judge “granting\\n\\nvoluntary departure in lieu of removal.” Id. § 1229c(b)(1). To receive such an order,\\n\\nthe “alien” must:\\n\\n (A) . . . [have] been physically present in the United States for a period\\n of at least one year immediately preceding the date the notice to\\n appear was served . . . ;\\n\\n (B) . . . [be, and have] been, a person of good moral character for at\\n least 5 years immediately preceding the alien’s application for\\n voluntary departure;\\n\\n (C) . . . not [be] deportable under section 1227(a)(2)(A)(iii)\\n [aggravated-felony convictions] or section 1227(a)(4) [security-\\n related grounds, including terrorist activities] . . . ; and\\n\\n (D) . . . establish[] by clear and convincing evidence that the alien has\\n the means to depart the United States and intends to do so.\\n\\nId.; see also 8 C.F.R. § 1240.26.\\n\\n Almanza-Vigil’s Colorado conviction was not an aggravated felony, and\\n\\nnothing in the record suggests that he poses a national-security risk. So, we agree\\n\\nwith Almanza-Vigil that even with his criminal record, he was eligible to receive\\n 30\\n\\fvoluntary departure in 2009, at least before the completion of removal proceedings.13\\n\\nBut we disagree that he was reasonably likely to receive it. See Aguirre-Tello,\\n\\n353 F.3d at 1209.\\n\\n In exercising their discretion to grant or deny a voluntary-departure\\n\\napplication, immigration judges balance the applicant’s positive equities, like lengthy\\n\\nresidence in the United States and close ties to family here, against negative factors,\\n\\nlike an unfavorable immigration history or a criminal record, and then decide whether\\n\\nthe applicant is worthy of an exercise of discretion. See Matter of Gamboa, 14 I & N.\\n\\nDec. 244, 248 (BIA 1972); accord United States v. Valdez-Novoa, 780 F.3d 906,\\n\\n917–21 (9th Cir. 2015) (applying Gamboa’s balancing principle in the context of\\n\\n§ 1326(d)’s fundamental-unfairness prong).\\n\\n Almanza-Vigil, bolstered by Vrapi’s testimony, asserts that an immigration\\n\\njudge considering the equities of his case would have found him worthy of voluntary\\n\\ndeparture. He had grown up in the United States since age eight; he had learned\\n\\nEnglish, graduated from high school, and worked a steady job; and he had many\\n\\n\\n\\n 13\\n Had Almanza-Vigil received voluntary departure either before the end, or at\\nthe end, of the removal proceedings, the immigration judge would have entered an\\n“alternate order of removal.” 8 C.F.R. § 1240.26(d); see also 8 U.S.C. § 1229c(b)(1).\\nNeither party addressed how such an order might affect subsequent illegal-reentry\\nproceedings. But had Almanza-Vigil returned after the entry of such an order, he\\nwould have “departed the United States while an order of exclusion, deportation, or\\nremoval [wa]s outstanding, and thereafter . . . enter[ed] . . . the United States,” thus\\nviolating 8 U.S.C. § 1326(a). (He would not, though, be subject to the twenty-year\\nmaximum prison sentence for those “whose removal was subsequent to a conviction\\nfor commission of an aggravated felony.” 8 U.S.C. § 1326(b)(2).)\\n\\n 31\\n\\fcitizen and lawful-permanent-resident family members, including a son born here.\\n\\nHis “only negative equity” was his conviction for “selling or distributing”\\n\\nmethamphetamine. Appellant’s Brief-in-Chief at 35. And Vrapi told the court that\\n\\nwith the counterweight of his positive factors, Almanza-Vigil “had a reasonable\\n\\nlikelihood of receiving” voluntary departure despite this conviction. R. vol. 1 at\\n\\n212:17–18. Voluntary departure, Vrapi explained, was “fairly easy” to get and “fairly\\n\\ntypical to be granted,” absent “some egregious circumstance” (like “[p]rior violations\\n\\nof other voluntary returns,” “disregard of border laws,” or “criminal acts”). Id. vol. 1\\n\\nat 211:21, 211:25–212:1, 212:4–7. Though he couldn’t give numbers, Vrapi said that\\n\\nhis clients had “gotten voluntary departure, even with felonies.” Id. vol. 1 at 212:12–\\n\\n13.\\n\\n In further support, Almanza-Vigil cites cases in which noncitizens with\\n\\ncriminal records worse than his have won this form of relief. In his best example, In\\n\\nre: Luis Alonzo Gonzales-Figueroa, the Board of Immigration Appeals upheld an\\n\\nimmigration judge’s decision to grant voluntary departure to an applicant with\\n\\n“numerous arrests,” four assault convictions (the last of which sent him to prison for\\n\\nsix months), and one resisting-arrest conviction. 2006 WL 729784, at *1 (BIA\\n\\nFeb. 10, 2006). Considering Gonzales-Figueroa’s countervailing positive equities,\\n\\nlike his lengthy residence in the country, his participation in Alcoholics Anonymous,\\n\\nand the testimony of his mother and sister, both U.S. citizens, that he had quit\\n\\ndrinking and helped his mother pay the bills, the board ruled that the immigration\\n\\njudge had not abused his discretion. Id. at *1–2.\\n\\n 32\\n\\f But as the Ninth Circuit observed in Valdez-Novoa, “a single case that is\\n\\narguably on point means only that it is ‘possible’ or ‘conceivable’ that a similarly\\n\\nsituated alien would be afforded voluntary departure.” 780 F.3d at 920. The same\\n\\npoint dampens Vrapi’s helpfulness here. Vrapi could not quantify Almanza-Vigil’s\\n\\nchances, nor could he describe any case in which an immigration judge had allowed\\n\\nsomeone convicted of “selling or distributing” methamphetamine to depart\\n\\nvoluntarily. Vrapi’s conclusory assertions that voluntary-departure relief is “fairly”\\n\\nlikely overall and would have been “reasonably” likely in Almanza-Vigil’s case\\n\\ncannot substitute for such empirical or anecdotal evidence. (Tellingly, Vrapi was\\n\\nunfamiliar with the Aguirre-Tello decision.) Our reasoning parallels the analysis in\\n\\nUnited States v. Reyes-Alvares, which involved the same expert witness and a similar\\n\\nfact pattern. No. CR 15-4121 KG, 2016 WL 10720854, at *1, *5 (D.N.M. Feb. 19,\\n\\n2016). There, the district court found Vrapi’s examples distinguishable from the case\\n\\nat bar, so it discounted his testimony “that ‘IJs ‘hand[ ][voluntary departures] out like\\n\\ncandy.’” Id. at *6–7 (alterations in original). Even added to decisions like Gonzales-\\n\\nFigueroa, Vrapi’s testimony here establishes only the possibility that Almanza-Vigil\\n\\nmight have received voluntary departure had his Colorado conviction been properly\\n\\nclassified; it doesn’t establish a reasonable likelihood.\\n\\n Almanza-Vigil has close ties to this country, including a U.S.-citizen son, but\\n\\nin 2009, when the government issued his removal order, he had just been released\\n\\nfrom prison for “selling or distributing” methamphetamine—a serious crime in the\\n\\ncolloquial sense, if not technically an aggravated felony under the INA. See 8 U.S.C.\\n\\n 33\\n\\f§ 1101(a)(43)(B). And unlike the applicant in Gonzales-Figueroa, Almanza-Vigil\\n\\noffered no evidence of rehabilitation. See 2006 WL 729784, at *1–2. As a result, he\\n\\ncan’t meet his burden of showing a “reasonable likelihood that, in deciding who is\\n\\ndeserving of discretionary relief from deportation among the many aliens eligible for\\n\\nsuch relief, the Attorney General would grant relief to one so recently convicted of\\n\\nsuch a serious . . . crime.” Aguirre-Tello, 353 F.3d at 1209.\\n\\n We agree with the district court that Almanza-Vigil failed to satisfy the\\n\\nfundamental-unfairness prong of 8 U.S.C. § 1326(d)(3). And without satisfying that\\n\\ncondition, the INA precludes him from collaterally attacking his 2009 removal order\\n\\nin the illegal-reentry prosecution. See 8 U.S.C. § 1326(d).\\n\\n CONCLUSION\\n\\n For these reasons, we affirm the district court’s judgment.\\n\\n\\n\\n\\n 34\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4356542/\", \"author_raw\": \"PHILLIPS, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"PHILLIPS"},"judge2":{"kind":"string","value":"KELLY"},"judge3":{"kind":"string","value":"MURPHY"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4579289/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Oscar ALMANZA-VIGIL, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-07\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 7, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v. No. 17-2007\n\n OSCAR ALMANZA-VIGIL,\n\n Defendant - Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of New Mexico\n (D.C. No. 2:15-CR-02605-RB-1)\n _________________________________\n\nJames N. Langell, Assistant Federal Public Defender (Stephen P. McCue, Federal Public\nDefender, with him on the briefs), Office of the Federal Public Defender, Las Cruces,\nNew Mexico, for Appellant.\n\nMarisa A. Ong, Assistant United States Attorney (James D. Tierney, Acting United States\nAttorney, with her on the brief), Office of the United States Attorney, Las Cruces, New\nMexico, for Appellee.\n _________________________________\n\nBefore PHILLIPS, KELLY, and MURPHY, Circuit Judges.\n _________________________________\n\nPHILLIPS, Circuit Judge.\n _________________________________\n\n The Immigration and Naturalization Act (INA) defines “aggravated felony” to\n\ninclude “illicit trafficking in a controlled substance,” 8 U.S.C. § 1101(a)(43)(B),\n\nmaking removal from this country “a virtual certainty” for a noncitizen convicted of\n\fsuch a crime, Sessions v. Dimaya, 138 S. Ct. 1204, 1211 (2017). The INA imposes\n\nserious consequences on a noncitizen convicted of an aggravated felony: (1) he\n\nbecomes deportable, 8 U.S.C. § 1227(a)(2)(A)(iii); (2) he loses the ability to obtain\n\ndiscretionary relief, like cancellation of removal, id. § 1229b(a)(3), or voluntary\n\ndeparture, id. § 1229c(a)(1); and (3) he is subject to expedited removal proceedings,\n\nwith no immigration judge present, id. § 1228(a)(1).\n\n That helps explain the stakes for Oscar Almanza-Vigil. In 2007, he pleaded\n\nguilty in Colorado state court to “selling or distributing” methamphetamine in\n\nviolation of Colorado Revised Statutes § 18-18-405(1)(a) (2006), for which he\n\nreceived a four-year prison sentence. In 2009, when the state paroled him,\n\nImmigration and Customs Enforcement (ICE) initiated expedited removal\n\nproceedings against him, declaring that he had committed an aggravated felony. With\n\nthat designation, he had no right to an administrative hearing before an immigration\n\njudge. Compare 8 U.S.C. § 1229a (“An immigration judge shall conduct proceedings\n\nfor deciding the inadmissibility or deportability of an alien.”), with 8 U.S.C.\n\n§ 1228(b)(1), and 8 C.F.R. § 238.1(b)(2)(i) (allowing the government to put\n\naggravated felons in expedited removal proceedings without a hearing before an\n\nimmigration judge). Within the week, the Department of Homeland Security had\n\nissued a final administrative removal order, and ICE agents had sent Almanza-Vigil\n\nback across the border to Mexico. Six years later, border-patrol agents found\n\nAlmanza-Vigil in the New Mexico desert. Then, charged with illegal reentry,\n\nAlmanza-Vigil moved to dismiss the indictment by collaterally attacking his previous\n\n 2\n\fremoval order and arguing, for the first time, that he never committed an aggravated\n\nfelony.\n\n Now reviewing the district court’s judgment convicting Almanza-Vigil for\n\nillegal reentry, we must return to 2009, when he left state prison, and ask how he\n\ncould have avoided removal. To prevail here, Almanza-Vigil must show not only that\n\nhis Colorado felony was not an aggravated felony, but that misclassifying it as one\n\nprejudiced him. To show the required prejudice, he must show that the\n\nmisclassification rendered the entry of the 2009 removal order fundamentally unfair.\n\nAbsent that, his appeal fails. See 8 U.S.C. § 1326(d).\n\n For the reasons detailed below, we conclude that Almanza-Vigil’s Colorado\n\nfelony does not fit the INA’s definition of an aggravated felony. But we also\n\nconclude that he failed to demonstrate a reasonable likelihood of avoiding removal\n\nbut for the erroneous classification of his conviction. The INA therefore parries a\n\ncollateral attack on Almanza-Vigil’s previous removal order. 8 U.S.C. § 1326(d). So,\n\nexercising our jurisdiction to review the district court’s final orders, 28 U.S.C.\n\n§ 1291, we affirm that court’s judgment of conviction.1\n\n\n 1\n The INA curbs our jurisdiction to review the removal order itself. Though the\nAct grants federal appellate courts exclusive authority to review final orders of\nremoval, it also carves from that authority our jurisdiction to review “any final order\nof removal entered against an alien who is removable by reason of having committed\na criminal offense” covered by the statute, including an aggravated felony. 8 U.S.C.\n§ 1252(a)(1), (a)(2)(C). Irrespective of statutory bars on our jurisdiction, however,\nwe retain the “authority to determine whether the factual conditions for the bar are\npresent.” Shepherd v. Holder, 678 F.3d 1171, 1180 (10th Cir. 2012). Moreover,\nnotwithstanding 8 U.S.C. § 1252(a)(2)(C)’s ban on reviewing orders to remove\n\n 3\n\f BACKGROUND\n\n Born in Chihuahua in 1984, Almanza-Vigil is a Mexican citizen. In 1993,\n\neight-year-old Almanza-Vigil and his family trekked across the Mexico–United\n\nStates border, without documents and without government inspection, and settled in\n\nColorado. Almanza-Vigil never acquired legal immigration status, but he grew up in\n\nthis country, learning English, graduating from high school, finding work at a dairy\n\nfarm, and eventually fathering a son.\n\n In 2006, when Almanza-Vigil was twenty-one years old, the district attorney\n\nin Fort Morgan, Colorado, charged him with six violations of the state’s controlled-\n\nsubstances act, all felonies. Counts 1, 2, and 3 of the criminal complaint charge three,\n\nidentical crimes: that “[o]n or [a]bout” September 15, 20, and 27 of that year,\n\nAlmanza-Vigil “unlawfully, feloniously, and knowingly sold or distributed\n\nMETHAMPHETAMINE, a schedule II controlled substance, in violation of section\n\n18-18-405(1),(2)(a)(I)(A), [Colorado Revised Statutes].” Suppl. R. vol. 2 at 3\n\n(bolding removed). Likewise, counts 4, 5, and 6 charge him with possessing\n\nmethamphetamine “[o]n or [a]bout” the same dates. Id. vol. 2 at 3–4.\n\n At the time, Colorado Revised Statutes § 18-18-405 provided, in pertinent\n\npart:\n\n\n\n“criminal aliens”—or any other statutory (or non-statutory) limit on our\njurisdiction—the INA preserves our jurisdiction to review constitutional and legal\nissues. See 8 U.S.C. § 1252(a)(2)(D). So, even within the INA’s (restrictive) judicial-\nreview scheme, 8 U.S.C. § 1252 leaves us the authority to decide whether Almanza-\nVigil committed an aggravated felony.\n\n 4\n\f (1)(a) Except as authorized by [other provisions of state law], it is\n unlawful for any person knowingly to manufacture, dispense, sell,\n distribute, possess, or to possess with intent to manufacture, dispense,\n sell, or distribute a controlled substance; or induce, attempt to induce, or\n conspire with one or more other persons, to manufacture, dispense, sell,\n distribute, possess, or possess with intent to manufacture, dispense, sell,\n or distribute a controlled substance; or possess one or more chemicals or\n supplies or equipment with intent to manufacture a controlled substance.\n\n ....\n\n (2)(a) Except as is otherwise provided in subsection (2.3) of this section\n for possession offenses not including possession with the intent to\n distribute involving one gram or less of any material, compound, mixture,\n or preparation that contains any quantity of a schedule I through IV\n controlled substance, . . . any person who violates any of the provisions\n of subsection (1) of this section:\n\n (I) In the case of a controlled substance listed in schedule I or II of part 2\n of this article, commits:\n\n (A) A class 3 felony; except that a person commits a class 4 felony if such\n violation is based on the possession of a controlled substance listed in\n schedule II unless otherwise provided in paragraph (a) of subsection (3)\n of this section[.]\n\n ....\n\n (2.3)(a) Any person who commits the offense of possession in violation\n of the provisions of subsection (1) of this section by possessing any\n material, compound, mixture, or preparation, weighing one gram or less\n that contains any quantity of a controlled substance listed in schedules I\n through IV of part 2 of this article commits:\n\n (I) A class 6 felony[.]\n\nColo. Rev. Stat. § 18-18-405 (2006).2\n\n\n\n 2\n Since 2006, the Colorado legislature has revised § 18-18-405 several times.\nSee, e.g., H.B. 10-1352, 67th Gen. Assemb., 2d Reg. Sess, ch. 259, 2010 Colo. Sess.\nLaws 1162, 1164 (striking simple possession from § 18-18-405(1)(a)’s list of\nproscriptions).\n\n 5\n\f In August 2007, Almanza-Vigil pleaded guilty to count 1, “selling or\n\ndistributing” methamphetamine. In exchange, the state dismissed the remaining five\n\ncharges. The state court’s “sentence order” reflects this bargain. Suppl. R. vol. 2 at 5.\n\nThe order shows Almanza-Vigil’s “Plea of Guilty” to count 1, “18-18-405(1),\n\n(2)(a)(I)(A) – Controlled subst-Distribute s,” a class 3 felony, and lists counts 2, 3, 4,\n\n5, and 6—two more distribution charges (also class 3 felonies) and three possession\n\ncharges (two class 4 felonies and one class 6 felony)—as “Dism by DA.” Suppl. R.\n\nvol. 2 at 5. The court sentenced Almanza-Vigil to serve four years in state prison.\n\n Two years passed. Then, prison officials informed Almanza-Vigil (whose\n\nparole was approaching) that the federal government had issued an immigration hold.\n\n“[Y]ou’re going to be going to Mexico,” he remembers being told. R. vol. 1 at\n\n154:25. And from that point on, he claims, he “never thought” that he would be able\n\nto challenge his removal. R. vol. 1 at 155:1.\n\n In April 2009, the state released Almanza-Vigil to ICE agents, who detained\n\nhim pending his removal. The Department of Homeland Security had decided that\n\nAlmanza-Vigil’s Colorado conviction met 8 U.S.C. § 1101(a)(43)(B)’s definition of\n\nan “aggravated felony,” making him deportable under 8 U.S.C. § 1227(a)(2)(A)(iii)\n\nand, because he lacked permanent-resident status, subjecting him to expedited\n\n\n\n\n 6\n\fremoval proceedings under 8 U.S.C. § 1228(b) and 8 C.F.R. § 238.1(b), (d), without\n\na hearing before an immigration judge.3\n\n The record on appeal contains the two forms that the government claims to\n\nhave given Almanza-Vigil during these proceedings: a two-page Notice of Intent\n\n(exhibit 4) and a one-page Certificate of Service (exhibit 5). These forms are, in the\n\ndistrict court’s words, “a mess.” R. vol. 1 at 354 ¶ 10.\n\n Exhibit 4 is titled, “Notice of Intent to Issue a Final Administrative Removal\n\nOrder.” Suppl. R. vol. 2 at 6. Below that title, the Notice is addressed to “Oscar\n\nALAMANZA-VIGIL” (a misspelling repeated on the next page). Id. at 6, 7. The\n\nNotice then sets forth the “Charge”: “You are deportable under . . . 8 U.S.C.\n\n§ 1227(a)(2)(A)(iii), as amended, because you have been convicted of an aggravated\n\nfelony . . . .” Suppl. R. vol. 2 at 6. And it explains “Your Rights and\n\n\n\n 3\n In expedited removal proceedings, a noncitizen with an aggravated-felony\nconviction is “conclusively presumed to be deportable,” 8 U.S.C. § 1228(c), and\nineligible for discretionary relief from removal, id. § 1228(b)(5). Still, the expedited-\nremoval statute and its accompanying regulations protect noncitizens’ rights to\nprocedural due process. See id. § 1228(b)(4). Section 1228(b)(3) requires the\ngovernment to wait fourteen days after issuing the final removal order and before\nexecuting it to allow the noncitizen “an opportunity to apply for judicial review” of\nthe order—unless the noncitizen waives this waiting period. Under § 1228(b)(3), the\ngovernment also must give the noncitizen reasonable notice of the charges against\nhim, as well as an opportunity to rebut them, and allow the noncitizen “the privilege\nof being represented (at no expense to the government)” by counsel. Id.\n§ 1228(b)(4)(A)–(C). Agency regulations add more specific mandates: A noncitizen\nmust be served with “Form I-851, Notice of Intent to Issue a Final Administrative\nDeportation Order,” which must inform the noncitizen of his rights to representation\nand to judicial review, among other rights, and provide him with a list of free legal\nservices. 8 C.F.R. § 238.1(b)(1)–(2).\n\n 7\n\fResponsibilities,” including (1) that “you may contact legal counsel from the list of\n\navailable services provided to you” (a list that the government didn’t provide) and\n\n(2) that if you want to exercise your rights to rebut the charge or to seek judicial\n\nreview, the government must receive your written response within ten days. Id. But\n\nthe Notice lacks a designated space for Almanza-Vigil’s signature. And while the\n\nNotice’s first page claims to be “Form I-851,” the next page identifies itself as “Form\n\nI-831 Continuation Page” and purports to be the third of three pages. Id. at 7. Above\n\nthis puzzling footer, the Continuation Page contains a typewritten paragraph alleging,\n\n“You were[] . . . convicted . . . for the offense of, Controlled Substance-Distribute\n\nSch. 2; to wit: Methamphetamine in violation of C.R.S. 18-18-405(1), (2)(a)(I)(A) for\n\nwhich the term of imprisonment was 4 years.” Id.\n\n Exhibit 5, the Certificate of Service, begins with an ICE agent’s signed\n\nstatement: “I served this Notice of Intent. I have determined that the person served\n\nwith this document is the individual named on the other side of the form.” Id. at 8.\n\n(The contents of the “other side” remain a mystery: the district court deduced only\n\nthat “the other side” was probably not the Certificate, based on the government’s\n\nintroduction of the Notice and the Certificate as separate exhibits.) Beneath two\n\nchecked boxes—one admitting “the allegations and charge in this Notice of Intent,”\n\nanother waiving “the right to remain in the United States . . . to apply for judicial\n\nreview”—the Certificate has three lines: on the first is a hand-drawn “x” and\n\nAlmanza-Vigil’s signature; on the second, someone printed “Oscar Almanza”; and on\n\nthe third is the date, April 6, 2009. Id.\n\n 8\n\f In the government’s view, Almanza-Vigil knowingly waived his right to\n\ncontest his removal by signing the Certificate. So, on April 6 (the same day that he\n\nsigned it), the Department of Homeland Security issued a final administrative\n\nremoval order declaring (1) that Almanza-Vigil is not a U.S. citizen, (2) that he has\n\nnever been lawfully admitted for permanent residence to the United States, and\n\n(3) that he has been convicted of an aggravated felony defined in 8 U.S.C.\n\n§ 1101(a)(43)(B). ICE executed the order a week later, on April 13, and an\n\nimmigration official witnessed Almanza-Vigil walk across the border near El Paso,\n\nTexas, and into Mexico.\n\n Six years later, in April 2015, a set of footprints in the New Mexico desert led\n\nborder-patrol agents to Almanza-Vigil, who was hiding in a mesquite bush near the\n\nborder fence. The agents arrested him, suspecting that he’d entered illegally. After\n\nhis processing revealed the 2009 removal order, prosecutors filed a criminal\n\ncomplaint in the U.S. District Court for the District of New Mexico, alleging that\n\nAlmanza-Vigil had reentered the country in violation of an outstanding removal order\n\nthat had followed an aggravated-felony conviction. Three months later, a grand jury\n\nreturned an indictment charging him with illegal reentry in violation of 8 U.S.C.\n\n§ 1326(a) and (b).\n\n Almanza-Vigil moved to dismiss the indictment by attacking his 2009 removal\n\norder—the government’s proof that he had reentered illegally (a felony under\n\n8 U.S.C. § 1326) rather than merely entered improperly (a misdemeanor under\n\n§ 1325). The 2009 removal order was “improperly issued,” he claimed, because he\n\n 9\n\fhad never been convicted of an aggravated felony. R. vol. 1 at 54. Had the\n\ngovernment realized this, he argued, he would not have been put in expedited\n\nremoval proceedings, and he could have applied for (and likely received)\n\ndiscretionary relief from removal. But the district court denied the motion and\n\nforeclosed Almanza-Vigil’s collateral attack. Twice, Almanza-Vigil asked the court\n\nto reconsider this ruling, but twice, the court refused.\n\n On December 14, 2015, after denying Almanza-Vigil’s first motion to\n\nreconsider, the court held a bench trial. “[B]ased upon the undisputed testimony” that\n\nhe had returned to the United States without permission after being deported, the\n\ncourt found Almanza-Vigil guilty of violating 8 U.S.C. § 1326(a) and (b). Four\n\nweeks later, after denying his second motion to reconsider, the court entered\n\njudgment and sentenced Almanza-Vigil to 635 days in prison (approximately time\n\nserved—he had been in custody since his arrest on April 19, 2015).4 He immediately\n\nappealed.\n\n DISCUSSION\n\n Almanza-Vigil challenges the district court’s refusal to dismiss the illegal-\n\nreentry indictment. On appeal, as in the district court, he disputes the validity of his\n\n2009 removal order by arguing that it was entered without due process. When a\n\nnoncitizen attacks the constitutionality of a previous removal proceeding in this way,\n\nhe presents a mixed question of law and fact that we review de novo. United States v.\n\n\n 4\n After his release, he returned to Mexico.\n\n 10\n\fAguirre-Tello, 353 F.3d 1199, 1204 (10th Cir. 2004). But before addressing the\n\nmerits of Almanza-Vigil’s appeal, we must narrow the question. To do so, we weave\n\ntogether the appeal’s statutory and procedural context.\n\n A. How Can a Noncitizen Prosecuted for Illegal Reentry Collaterally\n Attack the Underlying Removal Order?\n\n When the government prosecutes a noncitizen for illegal reentry, it typically\n\nmust prove two things: (1) that the noncitizen left the United States with an\n\noutstanding order of removal against him and (2) that afterward, the noncitizen\n\nentered, tried to enter, or was found in the United States. 8 U.S.C. § 1326(a).\n\n When the government offers a previous removal order as evidence of the first\n\nelement, the Fifth Amendment protects the noncitizen’s right to challenge that order,\n\neven years after the time for appeal has passed and the order has become final.\n\nUnited States v. Mendoza-Lopez, 481 U.S. 828, 837–39 (1987); accord United\n\nStates v. Adame-Orozco, 607 F.3d 647, 651 (10th Cir. 2010). Congress codified this\n\nright in 8 U.S.C. § 1326(d), subject to a noncitizen’s meeting three conditions. See\n\nAdame-Orozco, 607 F.3d at 651. To collaterally attack a previous removal order, the\n\nnoncitizen must show (1) that he exhausted all administrative remedies available to\n\ncontest the previous removal order, (2) that the previous removal proceedings\n\ndeprived him of the opportunity to seek judicial review, and (3) that the previous\n\norder’s entry was fundamentally unfair. 8 U.S.C. § 1326(d).\n\n Here, the district court concluded that, although Almanza-Vigil could satisfy\n\nthe first two conditions (administrative exhaustion and denial of judicial review) he\n\n\n 11\n\fcould not demonstrate the third condition, that the entry of the 2009 removal order\n\nwas fundamentally unfair. That conclusion rested on two, alternate grounds: first, that\n\nthe government had correctly classified Almanza-Vigil’s conviction as an aggravated\n\nfelony; and second, that the government’s decision to classify his conviction as an\n\naggravated felony had not prejudiced him. And because a collateral attack can’t\n\nsurvive the failure to meet any of § 1326(d)’s three conditions, the district court\n\nrejected Almanza-Vigil’s challenge to the 2009 order’s validity.\n\n So the appeal begins with one question: Does Almanza-Vigil’s conviction fit\n\nthe INA’s definition of an aggravated felony? Because we answer no, the appeal\n\npresents a second question: Did misclassifying the conviction so prejudice Almanza-\n\nVigil that the entry of his previous removal order was fundamentally unfair? Because\n\nwe again answer no, our inquiry ends there—we can uphold the dismissal of his\n\ncollateral attack without reaching § 1326(d)’s other conditions.\n\n B. Is “Selling or Distributing” Methamphetamine an Aggravated\n Felony?\n\n The parties dispute whether Almanza-Vigil’s conviction for “selling or\n\ndistributing” methamphetamine, see Colo. Rev. Stat. § 18-18-405(a) (2006), qualifies\n\nas an aggravated felony under the INA—specifically, whether it meets the definition\n\nin 8 U.S.C. § 1101(a)(43)(B): “illicit trafficking in a controlled substance (as defined\n\nin [21 U.S.C. § 802]), including a drug trafficking crime (as defined in [18 U.S.C.\n\n§ 924(c)]).” We first explain how to compare a state offense to the INA’s definition\n\n\n\n\n 12\n\fof an aggravated felony. Then, we apply those principles to resolve the parties’\n\ndispute.\n\n 1. The Categorical and Modified Categorical Approaches to\n Classifying Offenses\n\n “When the government alleges that a state conviction qualifies as an\n\n‘aggravated felony’ under the INA, we generally employ a ‘categorical approach’ to\n\ndetermine whether the state offense is comparable to an offense listed in the INA.”\n\nMoncrieffe v. Holder, 569 U.S. 184, 190 (2013) (citing Nijhawan v. Holder, 557 U.S.\n\n29, 33–38 (2009); Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185–87 (2007)). The\n\ncategorical approach asks whether the state offense’s definition matches “the\n\n‘generic’ federal definition of a corresponding aggravated felony.” Id. (quoting\n\nDuenas-Alvarez, 549 U.S. at 186). The state offense fits the generic offense only if it\n\n“necessarily” includes the generic federal offense. Id. (quoting Shepard v. United\n\nStates, 544 U.S. 13, 24 (2005) (plurality opinion)). We therefore presume that the\n\nstate conviction rested on “‘the least of th[e] acts’ criminalized,” then determine\n\nwhether the generic federal offense encompasses “even those acts.” Id. at 190–91\n\n(alteration in original) (quoting Johnson v. United States, 559 U.S. 133, 137 (2010)).\n\n “Whether the noncitizen’s actual conduct involved such facts ‘is quite\n\nirrelevant.’” Id. at 190 (quoting United States ex rel. Guarino v. Uhl, 107 F.2d 399,\n\n400 (2d Cir. 1939)). The categorical approach focuses on an offense’s elements—the\n\n“constituent parts” of its legal definition, “the things the ‘prosecution must prove to\n\nsustain a conviction.’” Mathis v. United States, 136 S. Ct. 2243, 2248 (2016)\n\n\n 13\n\f(quoting Elements of a Crime, Black’s Law Dictionary (10th ed. 2014)). If the\n\ndefendant goes to trial, then the elements are “what the jury must find beyond a\n\nreasonable doubt.” Id. (citing Richardson, 526 U.S. at 817). And if the defendant\n\npleads guilty, then the elements are what he “necessarily admits.” Id. (citing\n\nMcCarthy v. United States, 394 U.S. 456, 466 (1969)). Elements are abstract, in\n\ncontrast to “brute facts”—“mere real-world things[] extraneous to the crime’s legal\n\nrequirements,” which “need neither be found by a jury nor admitted by a defendant.”\n\nId. (first quoting Richardson v. United States, 526 U.S. 813, 817 (1999); and then\n\nciting Fact, Black’s Law Dictionary (10th ed. 2014)).\n\n When a state statute defines a single crime with a single—that is, indivisible—\n\nset of elements, the categorical approach is (relatively) “straightforward”: just “line[]\n\nup that crime’s elements alongside those of the generic offense and see[] if they\n\nmatch.” Id. But this comparison gets more complicated when a state statute is\n\ndivisible—that is, when it creates multiple crimes by listing multiple, alternative\n\nelements. Id. at 2249.5\n\n When a statute lists alternative elements, the modified categorical approach\n\nallows us to glimpse “a limited class of documents” from the previous conviction—\n\nthe indictment, the jury instructions, the plea agreement or colloquy—so that we can\n\n\n\n 5\n Mathis gives the example of a California law against “‘the lawful or the\nunlawful entry’ of a premises with intent to steal.” 136 S. Ct. at 2249. This law\ncreates “two offenses, one more serious than the other.” Id. But only the more serious\noffense, involving unlawful entry, matches generic federal burglary. Id.\n\n 14\n\ffigure out which alternative “was integral to the defendant’s conviction (that is,\n\nwhich was necessarily found or admitted).” Id. (citing Shepard, 544 U.S. at 26;\n\nTaylor, 495 U.S. at 602). Once we’ve discerned which crime, comprising which\n\nelements, the noncitizen was convicted of, we can “compare that crime, as the\n\ncategorical approach commands, with the relevant generic offense.” Id. But “the\n\nmodified categorical approach serves—and serves solely—as a tool to identify the\n\nelements of a crime of conviction when a statute’s disjunctive phrasing renders one\n\n(or more) of them opaque.” Id. at 2253 (citing Descamps v. United States, 570 U.S.\n\n254, 263–64 (2013)). We can’t “repurpose” it to explore whether a conviction, “even\n\nthough for a too-broad crime, rested on facts (or otherwise said, involved means) that\n\nalso could have satisfied the elements of a generic offense.” Id. at 2254.\n\n So, when we encounter a statute that lists alternatives, we face a threshold\n\nquestion: does the list enumerate alternative elements, which would allow us to use\n\nthe modified categorical approach, or alternative means, which would not?\n\n In Mathis, a state-court decision “definitively answer[ed]” the question\n\nwhether Iowa Code § 702.12, which prohibits unlawful entry into “any building,\n\nstructure, [or] land, water, or air vehicle,” creates alternative crimes or illustrates\n\nalternative methods of committing the same crime. Id. at 2256. In State v. Duncan,\n\nthe Iowa Supreme Court held that a jury need not unanimously agree on the burgled\n\npremises—there, either a boat or a marina—to convict the defendant of burglary;\n\neach location was an “alternative method of committing a single crime.” 312 N.W.2d\n\n519, 523 (Iowa 1981). Applying Duncan’s logic, Mathis concluded that the Iowa\n\n 15\n\fstatute’s list of locations “[laid] out alternative ways of satisfying a single, locational\n\nelement.” Mathis, 136 S. Ct. at 2250, 2256.6\n\n In other cases, the statute itself might resolve the means-or-elements question.\n\nId. at 2256. If each alternative carries a different penalty, then to comply with\n\nApprendi v. New Jersey, 530 U.S. 466, 490 (2000), the jury must unanimously agree\n\non one of them, meaning that the alternatives must be elements. Mathis, 136 S. Ct. at\n\n2256 (citing, among other state statutes, Colo. Rev. Stat. § 18-4-203 (2015), which\n\ndistinguishes second-degree burglary of a dwelling, a class 3 felony, from second-\n\ndegree burglary of any other “building or occupied structure,” a class 4 felony).\n\nOther state laws may specify the contents of a charging document: what things\n\nprosecutors must charge (elements) and what things they need not charge (means). Id.\n\n(citing Cal. Penal Code § 952 (West 2008)).\n\n In still other cases, though, state law might fail “to provide clear answers.” Id.\n\nThen, the modified categorical approach permits us to glimpse the record of the\n\nprevious conviction to determine whether the listed items are elements of the offense.\n\nId. at 2256–57 (quoting Rendon v. Holder, 782 F.3d 466, 473–74 (9th Cir. 2015)\n\n(Kozinski, J., dissenting from the denial of rehearing en banc)). If these documents\n\nreference one alternative “to the exclusion of all others,” that indicates the statute\n\n\n 6\n Compared to generic burglary, which protects any “building or other\nstructure,” Iowa burglary reached more places, like vehicles. Mathis, 136 S. Ct. at\n2250 (quoting Taylor, 495 U.S. at 598). And because the offenses’ locational\nelements didn’t line up, Mathis concluded that the two did not categorically match.\nSee id. at 2256–57.\n\n 16\n\flists several, alternative elements, each defining a separate crime. Id. at 2257. Then—\n\nand only then—can we use the documents to identify the crime of conviction. Id.\n\n“Conversely,” though, if the indictment and jury instructions reiterate the statutory\n\nlist (“building, structure, or vehicle”) or use “a single umbrella term” (like\n\n“premises”), that indicates the statute lists alternative means of fulfilling one\n\nelement. Id. And if so, we have “no call to decide which of the statutory alternatives\n\nwas at issue in the earlier prosecution.” Id. at 2256.\n\n Next, we consider what this means for Almanza-Vigil.\n\n 2. Does Almanza-Vigil’s Colorado Felony Categorically Match\n an Aggravated Felony Under the INA?\n\n Almanza-Vigil argues that Colorado Revised Statutes § 18-18-405(1)(a)\n\n(2006) sweeps too broadly to fit the generic federal offense at issue here—the\n\naggravated felony of “illicit trafficking in a controlled substance (as defined in\n\n[21 U.S.C. § 802]), including a drug trafficking crime (as defined in [18 U.S.C.\n\n§ 924(c)].” 8 U.S.C. § 1101(a)(43)(B).\n\n The generic offense encompasses any offense (state or federal) that “proscribes\n\nconduct punishable as a felony” under the Controlled Substances Act (CSA), Pub. L.\n\nNo. 91-513, 84 Stat. 1242 (1970) (codified as amended at 21 U.S.C. §§ 801–904).\n\nLopez v. Gonzales, 549 U.S. 47, 60 (2006); see also Moncrieffe, 569 U.S. at 188.7 By\n\n\n 7\n To explain this conclusion, Moncrieffe noted that 18 U.S.C. § 924(c)(2)\ndefines a “drug trafficking crime” as “any felony punishable under” three federal\nstatutes, including the CSA, and that 18 U.S.C. § 3559(a)(5) classifies an offense as a\n“felony” if “the maximum term of imprisonment authorized” is more than a year.\n\n 17\n\fcomparison, the state statute that Almanza-Vigil pleaded guilty to violating, Colorado\n\nRevised Statutes § 18-18-405(1)(a) (2006), makes it unlawful “to manufacture,\n\ndispense, sell, distribute, possess, or to possess with intent to manufacture, dispense,\n\nsell, or distribute a controlled substance” (among other acts). As even the government\n\nconcedes, the least of the acts criminalized—simple possession—is not a felony\n\nunder the CSA. See 21 U.S.C. § 844(a) (setting a ceiling of a year’s imprisonment for\n\na defendant’s first possession conviction); accord Lopez, 549 U.S. at 53. So, if the\n\nstatute is indivisible, then Almanza-Vigil is correct—it doesn’t match the generic\n\noffense.\n\n But the government contends that the Colorado statute is divisible and that,\n\nunder the modified categorical approach, Almanza-Vigil pleaded guilty to a crime the\n\ngovernment terms “distribution of methamphetamine,” which it claims “clearly\n\nconstitutes” the generic federal crime of illicit drug trafficking. Appellee’s Answer\n\nBr. at 26. We disagree.\n\n Last year, two Tenth Circuit cases considered the scope of a “controlled\n\nsubstance offense,” one of two categories of previous convictions that enhance the\n\nsentence of a “career offender” under the federal sentencing guidelines. United\n\nStates v. McKibbon, 878 F.3d 967, 971–76 (10th Cir. 2017); United States v.\n\nMadkins, 866 F.3d 1136, 1144–48 (10th Cir. 2017); see also U.S. Sentencing\n\nGuidelines Manual § 4B1.1(a) (U.S. Sentencing Comm’n 2018). Like the INA’s\n\ndefinition of a drug-trafficking offense, the guidelines’ definition of a “controlled\n\nsubstance offense” encompasses all state or federal offenses (1) that are punishable\n\n 18\n\fby more than a year’s imprisonment and (2) that proscribe the “manufacture, import,\n\nexport, distribution, or dispensing of a controlled substance,” or the “aiding[,] . . .\n\nabetting, conspiring, [or] attempting to commit such offenses.” U.S.S.G. § 4B1.2(b)\n\n& cmt. n.1. To this definition, Madkins and McKibbon hitched the CSA’s definition\n\nof distribution: “delivery” of the controlled substance. 21 U.S.C. § 802(11); see also\n\nMcKibbon, 878 F.3d at 972; Madkins, 866 F.3d at 1144.\n\n Both decisions then compared that definition to the defendants’ previous\n\nconvictions: Madkins’s convictions for the Kansas crimes of “possession with intent\n\nto sell, deliver, or distribute” cocaine and marijuana, and McKibbon’s conviction for\n\nthe Colorado crime at issue here (albeit a newer iteration, which had dropped simple\n\npossession from its list of proscribed acts). Madkins, 866 F.3d at 1145 (quoting\n\nKan. Stat. Ann. §§ 65-4161(a), 65-4163(a)(3) (2001)); McKibbon, 878 F.3d at 971–\n\n74 (citing Colo. Rev. Stat. § 18-18-405(1)(a) (2014)). The McKibbon court noted that\n\nColorado’s uniform controlled-substances act defines a “sale” to include “a barter, an\n\nexchange, or a gift, or an offer therefor.” Colo. Rev. Stat. § 18-18-403(1) (emphasis\n\nadded); McKibbon, 878 F.3d at 971. Likewise, the Madkins court observed that\n\nKansas law defines a “sale” to include an “offer to sell.” 866 F.3d at 1145.\n\nIncorporating each state’s definition of a “sale” into its proscription on “selling or\n\ndistributing” a controlled substance, both Madkins and McKibbon determined that the\n\nstates’ drug laws swept in more conduct—including offers to sell a controlled\n\nsubstance—than fit within the guidelines’ definition of a “controlled substance\n\noffense.” McKibbon, 878 F.3d at 972; Madkins, 866 F.3d at 1145–46 (citing United\n\n 19\n\fStates v. Hinkle, 832 F.3d 569, 576–77 (5th Cir. 2017) (concluding that a similar\n\nTexas statute was broader than the guidelines’ definition); United States v. Savage,\n\n542 F.3d 959, 966 (2d Cir. 2008) (concluding that a similar Connecticut statute was\n\nlikewise “overly inclusive”)). And because the elements didn’t line up, there was a\n\ncategorical mismatch.\n\n That was so, Madkins and McKibbon concluded, even though a “controlled\n\nsubstance offense” includes an attempt to distribute the controlled substance. See\n\nU.S.S.G. § 4B1.2 cmt. n.1. As Madkins explained, “an attempt to commit a crime\n\nrequires the intent to commit the crime and overt acts in furtherance of that intent.”\n\n866 F.3d at 1147 (quoting United States v. Taylor, 413 F.3d 1146, 1155 (10th Cir.\n\n2005)). Yet a person can offer to sell a controlled substance (an overt act) without\n\nintending to complete the sale. Id. Stated otherwise, an offer to sell can be fraudulent,\n\n“such as when one offers to sell the Brooklyn Bridge.” Id. (quoting Savage, 542 F.3d\n\nat 965). Unless we read in limiting language (which is out of bounds during statutory\n\nconstruction), a state law that proscribes all “offers” to sell a controlled substance\n\ncovers both the bona fide and the fraudulent. And because a fraudulent offer lacks\n\n“the intent to sell or distribute” that an attempt requires, a conviction for “selling or\n\ndistributing” a controlled substance (in any state that defines “sale” to include all\n\noffers) criminalizes a broader swath of conduct than the guidelines’ definition of a\n\n“controlled substance offense.” Id. at 1148.\n\n Madkins and (four months later) McKibbon thus both concluded that the\n\nguidelines’ definition of a “controlled substance offense” excludes convictions under\n\n 20\n\fstate statutes that proscribe “offers” to sell a controlled substance. McKibbon,\n\n878 F.3d at 972; Madkins, 866 F.3d at 1145. The least of the acts criminalized under\n\nsuch a state statute is a fraudulent offer to sell a controlled substance, which does not\n\nconstitute a “controlled substance offense” under the guidelines. Cf. Moncrieffe,\n\n569 U.S. at 191 (quoting Johnson, 559 U.S. at 137). So, “the two are not a\n\ncategorical match.” Madkins, 866 F.3d at 1147.\n\n In reaching this conclusion, McKibbon addressed but rejected the\n\ngovernment’s contention (which it raises again here) that Colorado Revised Statutes\n\n§ 18-18-405(1)(a) is divisible, “setting forth multiple elements of multiple criminal\n\noffenses, including manufacturing, dispensing, distributing, selling, or offering to sell\n\na controlled substance.” 878 F.3d at 974. If the government’s argument were correct,\n\nthen the court could have used the modified categorical approach to determine the\n\noffense to which McKibbon had pleaded guilty (and then compared that offense to\n\nthe guidelines’ definition). Id. But the court deemed the statute indivisible based on\n\nthe Colorado Supreme Court’s decision in People v. Abiodun, 111 P.3d 462 (Colo.\n\n2005). McKibbon, 878 F.3d at 974–75. As Mathis suggested it might, the Colorado\n\ncourt’s decision definitively answered the elements-or-means question—and its\n\nanswer was “means.” Id. at 974 (citing Mathis, 136 S. Ct. at 2256).\n\n\n\n\n 21\n\f In Abiodun, the Colorado Supreme Court held that Colorado Revised Statutes\n\n§ 18-18-4058 defines a single offense for double-jeopardy purposes:\n\n Nothing in the specific language of the statute or the history of its\n enactment suggests an intent to create a separate offense for each\n proscribed act. On the contrary, the scope and structure of the proscriptive\n provision, combined with sentencing provisions differentiating\n punishments on the basis of the quantum of drugs (rather than the act)\n involved, strongly points to the creation of a single crime, the gravamen\n of which is preventing the unauthorized delivery of a “particular quantity\n of a particular contraband substance.” . . . . Rather than completely\n separate offenses, the statute strongly suggests an intent to “criminalize\n successive stages of a single undertaking,” . . . “encompass[ing] every act\n and activity which could lead to the proliferation of drug traffic.”\n\n111 P.3d at 466–67 (alteration in original) (citations omitted) (first quoting Lopez v.\n\nState, 108 S.W.3d 293, 299 (Tex. Crim. App.2003); then quoting United States v.\n\nMendoza, 902 F.2d 693, 697 (8th Cir. 1990); and then quoting United States v.\n\nGomez, 593 F.3d 210, 213 (3d Cir. 1979)). In McKibbon’s view, Abiodun squarely\n\naddressed divisibility by “holding that the state legislature intended to create a single\n\nunitary offense when it enacted the ‘alternatively-phrased’ § 18-18-405(1)(a).”\n\nMcKibbon, 878 F.3d at 975 (quoting Mathis, 136 S. Ct. at 2249). Not only that,\n\nMcKibbon added, Abiodun interpreted the Colorado statute to dole out the same\n\npunishments regardless of “whether a defendant manufactured or distributed or\n\noffered to sell a controlled substance.” Id. (citing Mathis, 136 S. Ct. at 2256).\n\n\n 8\n Abiodun reviewed convictions that occurred sometime between 2001 and\n2003, when the drug laws were the same as in 2006 (Almanza-Vigil’s day)—and\nwhen § 18-18-405(1)(a) proscribed simple possession. See People v. Abiodun,\n87 P.3d 164, 165 (Colo. App. 2003). The Colorado legislature struck simple\npossession only in 2010. See supra note 2.\n\n 22\n\f Yet even if Abiodun’s message on divisibility were uncertain, Mathis’s final\n\nsuggestion—“if state law fails to provide clear answers”—allowed the McKibbon\n\ncourt to “peek” at the record of the previous conviction. Id. at 976 (quoting Mathis,\n\n136 S. Ct. at 2256–57). And there, the court saw that McKibbon had pleaded guilty to\n\nviolating Colorado Revised Statutes § 18-18-405(1)(a) by “either selling or\n\ndistributing heroin.” Id. So under Mathis, the court concluded, McKibbon’s previous\n\nrecord indicated that “selling or distributing” a controlled substance were alternative\n\nmeans of committing a single, indivisible offense. Id. (citing Mathis, 136 S. Ct. at\n\n2248).9\n\n Madkins and McKibbon thus crafted a general rule: if state law criminalizes\n\nfraudulent offers to sell a controlled substance, then a conviction under that state law\n\nis a categorical mismatch for the guidelines’ generic “controlled substance offense.”\n\nHere, we take their logic another step, into the immigration context. Like the generic\n\n“controlled substance offense” under the guidelines, the generic offense of “illicit\n\ntrafficking in a controlled substance” under the INA encompasses all state offenses\n\nthat are felonies under the CSA. Compare Lopez, 569 U.S. at 60 (defining the scope\n\nof “illicit trafficking in a controlled substance” under 8 U.S.C. § 1101(a)(43)(B)),\n\n\n\n 9\n Madkins also addressed divisibility, but it deemed the Kansas statutes\ndivisible. 866 F.3d at 1145 (discussing Kan. Stat. Ann. §§ 65-4151(a),\n65-4163(a)(3)). That didn’t matter in the end, though, because Madkins had pleaded\nguilty to possession with intent to sell cocaine and marijuana. Id. And the court\ndetermined that under Kansas law, these offenses covered possession with the intent\nto offer to sell cocaine and marijuana. See id.\n\n 23\n\fwith McKibbon, 878 F.3d at 972, and Madkins, 866 F.3d at 1144 (defining the scope\n\nof a “controlled substance offense” under U.S.S.G. § 4B1.2(b)). And according to\n\nMadkins and McKibbon, the felony offenses of distribution and attempted\n\ndistribution under the CSA exclude fraudulent offers to sell. See 21 U.S.C.\n\n§§ 802(11), 802(8), 841(a)(1) (prohibiting only the actual or attempted delivery of a\n\ncontrolled substance). So, a state statute that proscribes all offers to sell a controlled\n\nsubstance, including fraudulent ones, criminalizes more conduct than (and is a\n\ncategorical mismatch for) the INA’s definition of “illicit trafficking in a controlled\n\nsubstance.” See 8 U.S.C. § 1101(a)(43)(B).\n\n As for the state statute at issue here, McKibbon further tells us that Colorado\n\nRevised Statutes § 18-18-405(1)(a) is indivisible—at least to the extent that “selling\n\nor distributing” a controlled substance are alternative means of committing a single\n\noffense. McKibbon, 878 F.3d at 974; see also id. at 976. McKibbon thus specifically\n\nrejected the argument that the government makes here: that we can use the modified\n\ncategorical approach to define Almanza-Vigil’s crime of conviction more narrowly,\n\nas “distributing” methamphetamine. See id. at 974–76.\n\n And like in McKibbon, even if we do use the modified categorical approach to\n\n“peek” at the record of Almanza-Vigil’s previous conviction, we see that he was\n\nconvicted of “selling or distributing” methamphetamine. Of the six counts in the\n\ncomplaint, he pleaded guilty to the first:\n\n COUNT 1 - DISTRIBUTION OF A CONTROLLED SUBSTANCE -\n SCHEDULE II (F-3)\n\n\n 24\n\f On or About September 15, 2006, OSCAR ALMANZA-VIGIL\n unlawfully, feloniously, and knowingly sold or distributed\n METHAMPHETAMINE, a schedule II controlled substance; in violation\n of section 18-18-405(1),(2)(a)(I)(A), C.R.S.\n\nSuppl. R. vol. 2 at 3 (bolding removed). And according to Mathis, when an\n\nindictment reiterates the statute’s alternatives (here: “sold or distributed”), it’s “as\n\nclear an indication as any that each alternative is only a possible means of\n\ncommission, not an element that the prosecutor must prove to a jury beyond a\n\nreasonable doubt.” 136 S. Ct. at 2257. Nor does it matter that when pressed for space,\n\nthe state-court judgment labeled the charge “Controlled subst-Distribute.” Suppl. R.\n\nvol. 2 at 5. The modified categorical approach limits our record inquiry “to the terms\n\nof the charging document, the terms of a plea agreement or transcript of\n\ncolloquy . . . , or to some comparable judicial record of this information.” Shepard,\n\n544 U.S. at 26; see also Mathis, 136 S. Ct. at 2249. And here, the charging language\n\nin count one shows that Almanza-Vigil pleaded guilty to “selling or distributing”\n\nmethamphetamine. Suppl. R. vol. 2 at 3.\n\n Accordingly, it doesn’t matter whether we apply the categorical approach or\n\nthe modified categorical approach. Either way, Almanza-Vigil’s crime of conviction\n\nis “selling or distributing” a controlled substance in violation of Colorado Revised\n\nStatutes § 18-18-405(1)(a). And because that crime comprises fraudulent offers to\n\nsell a controlled substance, it does not categorically match the aggravated felony of\n\n“illicit trafficking in a controlled substance . . . , including a drug trafficking crime.”\n\n8 U.S.C. § 1101(a)(43)(B). Cf. McKibbon, 878 F.3d at 976.\n\n\n 25\n\f That leaves a final question: Even though the government misclassified\n\nAlmanza-Vigil’s Colorado conviction as an aggravated felony, which resulted in\n\nexpedited removal proceedings and the denial of any opportunity for discretionary\n\nrelief, can he additionally show that the entry of his previous removal order was\n\n“fundamentally unfair”? 8 U.S.C. § 1326(d)(3).\n\n C. Did Misclassifying Almanza-Vigil’s Colorado Conviction Render\n the Entry of his 2009 Removal Order Fundamentally Unfair?\n\n Almanza-Vigil argues that the government’s misclassification of his Colorado\n\nconviction as an aggravated felony prejudiced him because, outside expedited\n\nremoval proceedings, he could have applied for and received relief from removal,\n\nsuch as voluntary departure or cancellation of removal.10\n\n In Aguirre-Tello, we required a noncitizen alleging that the entry of a previous\n\nremoval order was fundamentally unfair to meet a reasonable-likelihood standard.\n\n353 F.3d at 1209; see also 8 U.S.C. § 1326(d)(3). To demonstrate fundamental\n\nunfairness, the noncitizen must establish a reasonable likelihood that, but for the\n\n\n\n\n 10\n We agree with Almanza-Vigil that S.E.C. v. Chenery Corp. would bar us\nfrom upholding his removal order on grounds different from those stated in that\norder. See 332 U.S. 194, 196 (1947) (“[A] reviewing court, in dealing with a\ndetermination or judgment which an administrative agency alone is authorized to\nmake, must judge the propriety of such action solely by the grounds invoked by the\nagency.”). But 8 U.S.C. § 1326(d)(3) prohibits us from addressing the removal order\nitself unless Almanza-Vigil can establish that the order’s entry was fundamentally\nunfair. And as Almanza-Vigil’s arguments throughout this case show, the\nfundamental-unfairness inquiry hinges on Almanza-Vigil’s chances of receiving\nrelief from removal.\n\n\n 26\n\fcomplained-of error, he would have avoided removal. Aguirre-Tello, 353 F.3d at\n\n1208 (quoting United States v. Calderon-Pena, 339 F.3d 320, 324 (5th Cir. 2003)).\n\nBut in a footnote, Aguirre-Tello noted “the inherent difficulty in demonstrating\n\nprejudice from the denial of eligibility for discretionary relief.” Id. at 1209 n.8 (citing\n\nMejia Rodriguez v. Reno, 178 F.3d 1139, 1148 (11th Cir. 1999)). The Aguirre-Tello\n\ncourt quoted Mejia-Rodriguez, where the Eleventh Circuit warned:\n\n An alien’s actual chances of receiving such discretionary relief\n [suspension of deportation]11 are too speculative, and too far beyond the\n capability of judicial review, to conclude that the alien has actually\n suffered prejudice from being ineligible for suspension of\n deportation . . . . Just as a court cannot review the inherently ‘subjective’\n judgments made by the executive in deciding whether to commute a life\n sentence, this Court cannot predict the subjective and fact-intensive\n judgments that the Attorney General would make in deciding whether to\n grant extraordinary relief, such as the suspension of deportation . . . . The\n alien cannot demonstrate prejudice, much less substantial prejudice,\n arising from the ineligibility for such an ‘act of grace’ because no\n standards exist for a court to determine whether the executive would have\n granted the extraordinary relief anyway.\n\nId. (quoting Mejia-Rodriguez, 178 F.3d at 1148).\n\n At the threshold, we disagree with the district court that Almanza-Vigil’s odds\n\nof receiving “an ‘act of grace’ in the form of discretionary relief” present an inquiry\n\n“too speculative” for judicial examination. R. vol. 1 at 470 (quoting Aguirre-Tello,\n\n353 F.3d at 1209 n.8). Aguirre-Tello itself did not consider the petitioning\n\n\n\n\n 11\n Under the current statutory scheme, “suspension of removal” corresponds to\ncancellation of removal under 8 U.S.C. § 1229b. See Immigration and Naturalization\nAct § 244, Pub. L. No. 82-414, 66 Stat. 163, 8 U.S.C. § 1254 (1994) (repealed).\n\n\n 27\n\fnoncitizen’s claim too speculative, despite hinting at the “inherent difficulty” of\n\nsuccess. 353 F.3d at 1209 n.8. Instead, the court explored the likelihood that he could\n\nhave received “a § 212(c) waiver12 from deportation.” See id. at 1209–10.\n\nAccordingly, we will, too.\n\n We turn to whether, absent the government’s misclassification of his Colorado\n\nconviction as an aggravated felony, Almanza-Vigil had a reasonable likelihood of\n\nreceiving either cancellation of removal or voluntary departure.\n\n 1. Cancellation of Removal\n\n The INA gives the Attorney General discretion to cancel the removal of an\n\notherwise-removable, non-permanent-resident “alien” who:\n\n (A) has been physically present in the United States for a continuous\n period of not less than 10 years immediately preceding the date of\n [his] application [for cancellation of removal];\n\n (B) has been a person of good moral character during such period;\n\n (C) has not been convicted of an offense under [8 U.S.C.\n §§ ]1182(a)(2) [including “any law or regulation of a State . . .\n relating to a controlled substance (as defined in section 802 of Title\n 21)”], 1227(a)(2) [including an aggravated felony or “any law or\n regulation of a State . . . relating to a controlled substance”], or\n\n\n\n 12\n Before Congress enacted the Antiterrorism and Effective Death Penalty Act\n(AEDPA), section 212(c) of the INA, codified at 8 U.S.C. § 1182(c), gave the\nAttorney General broad discretion to waive deportation for resident noncitizens. See\nINS v. St. Cyr, 533 U.S. 289, 294–95 (2001). In 1996, AEDPA “reduced” the class of\nnoncitizens eligible for such discretionary relief by identifying “a broad set of\noffenses for which conviction would preclude such relief.” Id. at 297. Later that year,\nCongress passed the Illegal Immigrant Reform and Immigrant Responsibility Act of\n1996, which repealed 8 U.S.C. § 1182(c) and created 8 U.S.C. § 1229b, permitting\n“cancellation of removal” for a much narrower class of resident noncitizens. Id.\n\n 28\n\f 1227(a)(3) [failure to register and falsification of documents] . . . ;\n and\n\n (D) establishes that removal would result in exceptional and extremely\n unusual hardship to the alien’s spouse, parent, or child, who is a\n citizen of the United States or an alien lawfully admitted for\n permanent residence.\n\n8 U.S.C. § 1229b(b)(1).\n\n Almanza-Vigil claims that, “had the relevant officials realized his conviction\n\nwas not an aggravated felony,” he would have had a reasonable likelihood of\n\nreceiving cancellation of removal. Appellant’s Brief-in-Chief at 37. He submits the\n\ntestimony of his immigration-law expert, Mr. Olsi Vrapi, a “Criminal immigration”\n\nlaw professor at the University of New Mexico School of Law and a practicing\n\nattorney who has represented hundreds of noncitizens in immigration proceedings. R.\n\nvol. 1 at 186:20. At the motion-to-dismiss hearing, Vrapi said that Almanza-Vigil\n\nwas “eligible for this form of relief” despite having pleaded guilty to “selling or\n\ndistributing” methamphetamine. R. vol. 1 at 206:25–207:1.\n\n We disagree. Though “selling or distributing” methamphetamine is not an\n\naggravated felony under the INA, it does violate “a[] law or regulation of a State . . .\n\nrelating to a controlled substance,” namely, Colorado Revised Statutes\n\n§ 18-18-405(1)(a). 8 U.S.C. §§ 1182(a)(2), 1227(a)(2). Almanza-Vigil’s Colorado\n\nconviction thus qualifies as an offense under both § 1182(a)(2) and § 1227(a)(2),\n\nwhich would have disqualified him from receiving cancellation of removal under\n\n8 U.S.C. § 1229b(b)(1)(C).\n\n\n\n 29\n\f 2. Voluntary Departure\n\n Compared to cancellation of removal, voluntary departure is available to a\n\nbroader class of noncitizens. The INA excludes only aggravated felons, 8 U.S.C.\n\n§ 1227(a)(2)(A)(iii), those engaged in terrorist activities, id. § 1227(a)(4)(B), and\n\nsome noncitizens “previously permitted to so depart,” from this form of relief. See id.\n\n§§ 1229c(a)(1), 1229c(c). Any other noncitizen may seek permission to depart at his\n\nown expense instead of commencing, or before completing, removal proceedings. See\n\nid. § 1229c(a)(1). Alternatively, at the end of removal proceedings, a noncitizen who\n\nmeets certain conditions may seek an order from the immigration judge “granting\n\nvoluntary departure in lieu of removal.” Id. § 1229c(b)(1). To receive such an order,\n\nthe “alien” must:\n\n (A) . . . [have] been physically present in the United States for a period\n of at least one year immediately preceding the date the notice to\n appear was served . . . ;\n\n (B) . . . [be, and have] been, a person of good moral character for at\n least 5 years immediately preceding the alien’s application for\n voluntary departure;\n\n (C) . . . not [be] deportable under section 1227(a)(2)(A)(iii)\n [aggravated-felony convictions] or section 1227(a)(4) [security-\n related grounds, including terrorist activities] . . . ; and\n\n (D) . . . establish[] by clear and convincing evidence that the alien has\n the means to depart the United States and intends to do so.\n\nId.; see also 8 C.F.R. § 1240.26.\n\n Almanza-Vigil’s Colorado conviction was not an aggravated felony, and\n\nnothing in the record suggests that he poses a national-security risk. So, we agree\n\nwith Almanza-Vigil that even with his criminal record, he was eligible to receive\n 30\n\fvoluntary departure in 2009, at least before the completion of removal proceedings.13\n\nBut we disagree that he was reasonably likely to receive it. See Aguirre-Tello,\n\n353 F.3d at 1209.\n\n In exercising their discretion to grant or deny a voluntary-departure\n\napplication, immigration judges balance the applicant’s positive equities, like lengthy\n\nresidence in the United States and close ties to family here, against negative factors,\n\nlike an unfavorable immigration history or a criminal record, and then decide whether\n\nthe applicant is worthy of an exercise of discretion. See Matter of Gamboa, 14 I & N.\n\nDec. 244, 248 (BIA 1972); accord United States v. Valdez-Novoa, 780 F.3d 906,\n\n917–21 (9th Cir. 2015) (applying Gamboa’s balancing principle in the context of\n\n§ 1326(d)’s fundamental-unfairness prong).\n\n Almanza-Vigil, bolstered by Vrapi’s testimony, asserts that an immigration\n\njudge considering the equities of his case would have found him worthy of voluntary\n\ndeparture. He had grown up in the United States since age eight; he had learned\n\nEnglish, graduated from high school, and worked a steady job; and he had many\n\n\n\n 13\n Had Almanza-Vigil received voluntary departure either before the end, or at\nthe end, of the removal proceedings, the immigration judge would have entered an\n“alternate order of removal.” 8 C.F.R. § 1240.26(d); see also 8 U.S.C. § 1229c(b)(1).\nNeither party addressed how such an order might affect subsequent illegal-reentry\nproceedings. But had Almanza-Vigil returned after the entry of such an order, he\nwould have “departed the United States while an order of exclusion, deportation, or\nremoval [wa]s outstanding, and thereafter . . . enter[ed] . . . the United States,” thus\nviolating 8 U.S.C. § 1326(a). (He would not, though, be subject to the twenty-year\nmaximum prison sentence for those “whose removal was subsequent to a conviction\nfor commission of an aggravated felony.” 8 U.S.C. § 1326(b)(2).)\n\n 31\n\fcitizen and lawful-permanent-resident family members, including a son born here.\n\nHis “only negative equity” was his conviction for “selling or distributing”\n\nmethamphetamine. Appellant’s Brief-in-Chief at 35. And Vrapi told the court that\n\nwith the counterweight of his positive factors, Almanza-Vigil “had a reasonable\n\nlikelihood of receiving” voluntary departure despite this conviction. R. vol. 1 at\n\n212:17–18. Voluntary departure, Vrapi explained, was “fairly easy” to get and “fairly\n\ntypical to be granted,” absent “some egregious circumstance” (like “[p]rior violations\n\nof other voluntary returns,” “disregard of border laws,” or “criminal acts”). Id. vol. 1\n\nat 211:21, 211:25–212:1, 212:4–7. Though he couldn’t give numbers, Vrapi said that\n\nhis clients had “gotten voluntary departure, even with felonies.” Id. vol. 1 at 212:12–\n\n13.\n\n In further support, Almanza-Vigil cites cases in which noncitizens with\n\ncriminal records worse than his have won this form of relief. In his best example, In\n\nre: Luis Alonzo Gonzales-Figueroa, the Board of Immigration Appeals upheld an\n\nimmigration judge’s decision to grant voluntary departure to an applicant with\n\n“numerous arrests,” four assault convictions (the last of which sent him to prison for\n\nsix months), and one resisting-arrest conviction. 2006 WL 729784, at *1 (BIA\n\nFeb. 10, 2006). Considering Gonzales-Figueroa’s countervailing positive equities,\n\nlike his lengthy residence in the country, his participation in Alcoholics Anonymous,\n\nand the testimony of his mother and sister, both U.S. citizens, that he had quit\n\ndrinking and helped his mother pay the bills, the board ruled that the immigration\n\njudge had not abused his discretion. Id. at *1–2.\n\n 32\n\f But as the Ninth Circuit observed in Valdez-Novoa, “a single case that is\n\narguably on point means only that it is ‘possible’ or ‘conceivable’ that a similarly\n\nsituated alien would be afforded voluntary departure.” 780 F.3d at 920. The same\n\npoint dampens Vrapi’s helpfulness here. Vrapi could not quantify Almanza-Vigil’s\n\nchances, nor could he describe any case in which an immigration judge had allowed\n\nsomeone convicted of “selling or distributing” methamphetamine to depart\n\nvoluntarily. Vrapi’s conclusory assertions that voluntary-departure relief is “fairly”\n\nlikely overall and would have been “reasonably” likely in Almanza-Vigil’s case\n\ncannot substitute for such empirical or anecdotal evidence. (Tellingly, Vrapi was\n\nunfamiliar with the Aguirre-Tello decision.) Our reasoning parallels the analysis in\n\nUnited States v. Reyes-Alvares, which involved the same expert witness and a similar\n\nfact pattern. No. CR 15-4121 KG, 2016 WL 10720854, at *1, *5 (D.N.M. Feb. 19,\n\n2016). There, the district court found Vrapi’s examples distinguishable from the case\n\nat bar, so it discounted his testimony “that ‘IJs ‘hand[ ][voluntary departures] out like\n\ncandy.’” Id. at *6–7 (alterations in original). Even added to decisions like Gonzales-\n\nFigueroa, Vrapi’s testimony here establishes only the possibility that Almanza-Vigil\n\nmight have received voluntary departure had his Colorado conviction been properly\n\nclassified; it doesn’t establish a reasonable likelihood.\n\n Almanza-Vigil has close ties to this country, including a U.S.-citizen son, but\n\nin 2009, when the government issued his removal order, he had just been released\n\nfrom prison for “selling or distributing” methamphetamine—a serious crime in the\n\ncolloquial sense, if not technically an aggravated felony under the INA. See 8 U.S.C.\n\n 33\n\f§ 1101(a)(43)(B). And unlike the applicant in Gonzales-Figueroa, Almanza-Vigil\n\noffered no evidence of rehabilitation. See 2006 WL 729784, at *1–2. As a result, he\n\ncan’t meet his burden of showing a “reasonable likelihood that, in deciding who is\n\ndeserving of discretionary relief from deportation among the many aliens eligible for\n\nsuch relief, the Attorney General would grant relief to one so recently convicted of\n\nsuch a serious . . . crime.” Aguirre-Tello, 353 F.3d at 1209.\n\n We agree with the district court that Almanza-Vigil failed to satisfy the\n\nfundamental-unfairness prong of 8 U.S.C. § 1326(d)(3). And without satisfying that\n\ncondition, the INA precludes him from collaterally attacking his 2009 removal order\n\nin the illegal-reentry prosecution. See 8 U.S.C. § 1326(d).\n\n CONCLUSION\n\n For these reasons, we affirm the district court’s judgment.\n\n\n\n\n 34\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Oscar ALMANZA-VIGIL, Defendant - Appellant.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-01-07\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS January 7, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n UNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v. No. 17-2007\\n\\n OSCAR ALMANZA-VIGIL,\\n\\n Defendant - Appellant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of New Mexico\\n (D.C. No. 2:15-CR-02605-RB-1)\\n _________________________________\\n\\nJames N. Langell, Assistant Federal Public Defender (Stephen P. McCue, Federal Public\\nDefender, with him on the briefs), Office of the Federal Public Defender, Las Cruces,\\nNew Mexico, for Appellant.\\n\\nMarisa A. Ong, Assistant United States Attorney (James D. Tierney, Acting United States\\nAttorney, with her on the brief), Office of the United States Attorney, Las Cruces, New\\nMexico, for Appellee.\\n _________________________________\\n\\nBefore PHILLIPS, KELLY, and MURPHY, Circuit Judges.\\n _________________________________\\n\\nPHILLIPS, Circuit Judge.\\n _________________________________\\n\\n The Immigration and Naturalization Act (INA) defines “aggravated felony” to\\n\\ninclude “illicit trafficking in a controlled substance,” 8 U.S.C. § 1101(a)(43)(B),\\n\\nmaking removal from this country “a virtual certainty” for a noncitizen convicted of\\n\\fsuch a crime, Sessions v. Dimaya, 138 S. Ct. 1204, 1211 (2017). The INA imposes\\n\\nserious consequences on a noncitizen convicted of an aggravated felony: (1) he\\n\\nbecomes deportable, 8 U.S.C. § 1227(a)(2)(A)(iii); (2) he loses the ability to obtain\\n\\ndiscretionary relief, like cancellation of removal, id. § 1229b(a)(3), or voluntary\\n\\ndeparture, id. § 1229c(a)(1); and (3) he is subject to expedited removal proceedings,\\n\\nwith no immigration judge present, id. § 1228(a)(1).\\n\\n That helps explain the stakes for Oscar Almanza-Vigil. In 2007, he pleaded\\n\\nguilty in Colorado state court to “selling or distributing” methamphetamine in\\n\\nviolation of Colorado Revised Statutes § 18-18-405(1)(a) (2006), for which he\\n\\nreceived a four-year prison sentence. In 2009, when the state paroled him,\\n\\nImmigration and Customs Enforcement (ICE) initiated expedited removal\\n\\nproceedings against him, declaring that he had committed an aggravated felony. With\\n\\nthat designation, he had no right to an administrative hearing before an immigration\\n\\njudge. Compare 8 U.S.C. § 1229a (“An immigration judge shall conduct proceedings\\n\\nfor deciding the inadmissibility or deportability of an alien.”), with 8 U.S.C.\\n\\n§ 1228(b)(1), and 8 C.F.R. § 238.1(b)(2)(i) (allowing the government to put\\n\\naggravated felons in expedited removal proceedings without a hearing before an\\n\\nimmigration judge). Within the week, the Department of Homeland Security had\\n\\nissued a final administrative removal order, and ICE agents had sent Almanza-Vigil\\n\\nback across the border to Mexico. Six years later, border-patrol agents found\\n\\nAlmanza-Vigil in the New Mexico desert. Then, charged with illegal reentry,\\n\\nAlmanza-Vigil moved to dismiss the indictment by collaterally attacking his previous\\n\\n 2\\n\\fremoval order and arguing, for the first time, that he never committed an aggravated\\n\\nfelony.\\n\\n Now reviewing the district court’s judgment convicting Almanza-Vigil for\\n\\nillegal reentry, we must return to 2009, when he left state prison, and ask how he\\n\\ncould have avoided removal. To prevail here, Almanza-Vigil must show not only that\\n\\nhis Colorado felony was not an aggravated felony, but that misclassifying it as one\\n\\nprejudiced him. To show the required prejudice, he must show that the\\n\\nmisclassification rendered the entry of the 2009 removal order fundamentally unfair.\\n\\nAbsent that, his appeal fails. See 8 U.S.C. § 1326(d).\\n\\n For the reasons detailed below, we conclude that Almanza-Vigil’s Colorado\\n\\nfelony does not fit the INA’s definition of an aggravated felony. But we also\\n\\nconclude that he failed to demonstrate a reasonable likelihood of avoiding removal\\n\\nbut for the erroneous classification of his conviction. The INA therefore parries a\\n\\ncollateral attack on Almanza-Vigil’s previous removal order. 8 U.S.C. § 1326(d). So,\\n\\nexercising our jurisdiction to review the district court’s final orders, 28 U.S.C.\\n\\n§ 1291, we affirm that court’s judgment of conviction.1\\n\\n\\n 1\\n The INA curbs our jurisdiction to review the removal order itself. Though the\\nAct grants federal appellate courts exclusive authority to review final orders of\\nremoval, it also carves from that authority our jurisdiction to review “any final order\\nof removal entered against an alien who is removable by reason of having committed\\na criminal offense” covered by the statute, including an aggravated felony. 8 U.S.C.\\n§ 1252(a)(1), (a)(2)(C). Irrespective of statutory bars on our jurisdiction, however,\\nwe retain the “authority to determine whether the factual conditions for the bar are\\npresent.” Shepherd v. Holder, 678 F.3d 1171, 1180 (10th Cir. 2012). Moreover,\\nnotwithstanding 8 U.S.C. § 1252(a)(2)(C)’s ban on reviewing orders to remove\\n\\n 3\\n\\f BACKGROUND\\n\\n Born in Chihuahua in 1984, Almanza-Vigil is a Mexican citizen. In 1993,\\n\\neight-year-old Almanza-Vigil and his family trekked across the Mexico–United\\n\\nStates border, without documents and without government inspection, and settled in\\n\\nColorado. Almanza-Vigil never acquired legal immigration status, but he grew up in\\n\\nthis country, learning English, graduating from high school, finding work at a dairy\\n\\nfarm, and eventually fathering a son.\\n\\n In 2006, when Almanza-Vigil was twenty-one years old, the district attorney\\n\\nin Fort Morgan, Colorado, charged him with six violations of the state’s controlled-\\n\\nsubstances act, all felonies. Counts 1, 2, and 3 of the criminal complaint charge three,\\n\\nidentical crimes: that “[o]n or [a]bout” September 15, 20, and 27 of that year,\\n\\nAlmanza-Vigil “unlawfully, feloniously, and knowingly sold or distributed\\n\\nMETHAMPHETAMINE, a schedule II controlled substance, in violation of section\\n\\n18-18-405(1),(2)(a)(I)(A), [Colorado Revised Statutes].” Suppl. R. vol. 2 at 3\\n\\n(bolding removed). Likewise, counts 4, 5, and 6 charge him with possessing\\n\\nmethamphetamine “[o]n or [a]bout” the same dates. Id. vol. 2 at 3–4.\\n\\n At the time, Colorado Revised Statutes § 18-18-405 provided, in pertinent\\n\\npart:\\n\\n\\n\\n“criminal aliens”—or any other statutory (or non-statutory) limit on our\\njurisdiction—the INA preserves our jurisdiction to review constitutional and legal\\nissues. See 8 U.S.C. § 1252(a)(2)(D). So, even within the INA’s (restrictive) judicial-\\nreview scheme, 8 U.S.C. § 1252 leaves us the authority to decide whether Almanza-\\nVigil committed an aggravated felony.\\n\\n 4\\n\\f (1)(a) Except as authorized by [other provisions of state law], it is\\n unlawful for any person knowingly to manufacture, dispense, sell,\\n distribute, possess, or to possess with intent to manufacture, dispense,\\n sell, or distribute a controlled substance; or induce, attempt to induce, or\\n conspire with one or more other persons, to manufacture, dispense, sell,\\n distribute, possess, or possess with intent to manufacture, dispense, sell,\\n or distribute a controlled substance; or possess one or more chemicals or\\n supplies or equipment with intent to manufacture a controlled substance.\\n\\n ....\\n\\n (2)(a) Except as is otherwise provided in subsection (2.3) of this section\\n for possession offenses not including possession with the intent to\\n distribute involving one gram or less of any material, compound, mixture,\\n or preparation that contains any quantity of a schedule I through IV\\n controlled substance, . . . any person who violates any of the provisions\\n of subsection (1) of this section:\\n\\n (I) In the case of a controlled substance listed in schedule I or II of part 2\\n of this article, commits:\\n\\n (A) A class 3 felony; except that a person commits a class 4 felony if such\\n violation is based on the possession of a controlled substance listed in\\n schedule II unless otherwise provided in paragraph (a) of subsection (3)\\n of this section[.]\\n\\n ....\\n\\n (2.3)(a) Any person who commits the offense of possession in violation\\n of the provisions of subsection (1) of this section by possessing any\\n material, compound, mixture, or preparation, weighing one gram or less\\n that contains any quantity of a controlled substance listed in schedules I\\n through IV of part 2 of this article commits:\\n\\n (I) A class 6 felony[.]\\n\\nColo. Rev. Stat. § 18-18-405 (2006).2\\n\\n\\n\\n 2\\n Since 2006, the Colorado legislature has revised § 18-18-405 several times.\\nSee, e.g., H.B. 10-1352, 67th Gen. Assemb., 2d Reg. Sess, ch. 259, 2010 Colo. Sess.\\nLaws 1162, 1164 (striking simple possession from § 18-18-405(1)(a)’s list of\\nproscriptions).\\n\\n 5\\n\\f In August 2007, Almanza-Vigil pleaded guilty to count 1, “selling or\\n\\ndistributing” methamphetamine. In exchange, the state dismissed the remaining five\\n\\ncharges. The state court’s “sentence order” reflects this bargain. Suppl. R. vol. 2 at 5.\\n\\nThe order shows Almanza-Vigil’s “Plea of Guilty” to count 1, “18-18-405(1),\\n\\n(2)(a)(I)(A) – Controlled subst-Distribute s,” a class 3 felony, and lists counts 2, 3, 4,\\n\\n5, and 6—two more distribution charges (also class 3 felonies) and three possession\\n\\ncharges (two class 4 felonies and one class 6 felony)—as “Dism by DA.” Suppl. R.\\n\\nvol. 2 at 5. The court sentenced Almanza-Vigil to serve four years in state prison.\\n\\n Two years passed. Then, prison officials informed Almanza-Vigil (whose\\n\\nparole was approaching) that the federal government had issued an immigration hold.\\n\\n“[Y]ou’re going to be going to Mexico,” he remembers being told. R. vol. 1 at\\n\\n154:25. And from that point on, he claims, he “never thought” that he would be able\\n\\nto challenge his removal. R. vol. 1 at 155:1.\\n\\n In April 2009, the state released Almanza-Vigil to ICE agents, who detained\\n\\nhim pending his removal. The Department of Homeland Security had decided that\\n\\nAlmanza-Vigil’s Colorado conviction met 8 U.S.C. § 1101(a)(43)(B)’s definition of\\n\\nan “aggravated felony,” making him deportable under 8 U.S.C. § 1227(a)(2)(A)(iii)\\n\\nand, because he lacked permanent-resident status, subjecting him to expedited\\n\\n\\n\\n\\n 6\\n\\fremoval proceedings under 8 U.S.C. § 1228(b) and 8 C.F.R. § 238.1(b), (d), without\\n\\na hearing before an immigration judge.3\\n\\n The record on appeal contains the two forms that the government claims to\\n\\nhave given Almanza-Vigil during these proceedings: a two-page Notice of Intent\\n\\n(exhibit 4) and a one-page Certificate of Service (exhibit 5). These forms are, in the\\n\\ndistrict court’s words, “a mess.” R. vol. 1 at 354 ¶ 10.\\n\\n Exhibit 4 is titled, “Notice of Intent to Issue a Final Administrative Removal\\n\\nOrder.” Suppl. R. vol. 2 at 6. Below that title, the Notice is addressed to “Oscar\\n\\nALAMANZA-VIGIL” (a misspelling repeated on the next page). Id. at 6, 7. The\\n\\nNotice then sets forth the “Charge”: “You are deportable under . . . 8 U.S.C.\\n\\n§ 1227(a)(2)(A)(iii), as amended, because you have been convicted of an aggravated\\n\\nfelony . . . .” Suppl. R. vol. 2 at 6. And it explains “Your Rights and\\n\\n\\n\\n 3\\n In expedited removal proceedings, a noncitizen with an aggravated-felony\\nconviction is “conclusively presumed to be deportable,” 8 U.S.C. § 1228(c), and\\nineligible for discretionary relief from removal, id. § 1228(b)(5). Still, the expedited-\\nremoval statute and its accompanying regulations protect noncitizens’ rights to\\nprocedural due process. See id. § 1228(b)(4). Section 1228(b)(3) requires the\\ngovernment to wait fourteen days after issuing the final removal order and before\\nexecuting it to allow the noncitizen “an opportunity to apply for judicial review” of\\nthe order—unless the noncitizen waives this waiting period. Under § 1228(b)(3), the\\ngovernment also must give the noncitizen reasonable notice of the charges against\\nhim, as well as an opportunity to rebut them, and allow the noncitizen “the privilege\\nof being represented (at no expense to the government)” by counsel. Id.\\n§ 1228(b)(4)(A)–(C). Agency regulations add more specific mandates: A noncitizen\\nmust be served with “Form I-851, Notice of Intent to Issue a Final Administrative\\nDeportation Order,” which must inform the noncitizen of his rights to representation\\nand to judicial review, among other rights, and provide him with a list of free legal\\nservices. 8 C.F.R. § 238.1(b)(1)–(2).\\n\\n 7\\n\\fResponsibilities,” including (1) that “you may contact legal counsel from the list of\\n\\navailable services provided to you” (a list that the government didn’t provide) and\\n\\n(2) that if you want to exercise your rights to rebut the charge or to seek judicial\\n\\nreview, the government must receive your written response within ten days. Id. But\\n\\nthe Notice lacks a designated space for Almanza-Vigil’s signature. And while the\\n\\nNotice’s first page claims to be “Form I-851,” the next page identifies itself as “Form\\n\\nI-831 Continuation Page” and purports to be the third of three pages. Id. at 7. Above\\n\\nthis puzzling footer, the Continuation Page contains a typewritten paragraph alleging,\\n\\n“You were[] . . . convicted . . . for the offense of, Controlled Substance-Distribute\\n\\nSch. 2; to wit: Methamphetamine in violation of C.R.S. 18-18-405(1), (2)(a)(I)(A) for\\n\\nwhich the term of imprisonment was 4 years.” Id.\\n\\n Exhibit 5, the Certificate of Service, begins with an ICE agent’s signed\\n\\nstatement: “I served this Notice of Intent. I have determined that the person served\\n\\nwith this document is the individual named on the other side of the form.” Id. at 8.\\n\\n(The contents of the “other side” remain a mystery: the district court deduced only\\n\\nthat “the other side” was probably not the Certificate, based on the government’s\\n\\nintroduction of the Notice and the Certificate as separate exhibits.) Beneath two\\n\\nchecked boxes—one admitting “the allegations and charge in this Notice of Intent,”\\n\\nanother waiving “the right to remain in the United States . . . to apply for judicial\\n\\nreview”—the Certificate has three lines: on the first is a hand-drawn “x” and\\n\\nAlmanza-Vigil’s signature; on the second, someone printed “Oscar Almanza”; and on\\n\\nthe third is the date, April 6, 2009. Id.\\n\\n 8\\n\\f In the government’s view, Almanza-Vigil knowingly waived his right to\\n\\ncontest his removal by signing the Certificate. So, on April 6 (the same day that he\\n\\nsigned it), the Department of Homeland Security issued a final administrative\\n\\nremoval order declaring (1) that Almanza-Vigil is not a U.S. citizen, (2) that he has\\n\\nnever been lawfully admitted for permanent residence to the United States, and\\n\\n(3) that he has been convicted of an aggravated felony defined in 8 U.S.C.\\n\\n§ 1101(a)(43)(B). ICE executed the order a week later, on April 13, and an\\n\\nimmigration official witnessed Almanza-Vigil walk across the border near El Paso,\\n\\nTexas, and into Mexico.\\n\\n Six years later, in April 2015, a set of footprints in the New Mexico desert led\\n\\nborder-patrol agents to Almanza-Vigil, who was hiding in a mesquite bush near the\\n\\nborder fence. The agents arrested him, suspecting that he’d entered illegally. After\\n\\nhis processing revealed the 2009 removal order, prosecutors filed a criminal\\n\\ncomplaint in the U.S. District Court for the District of New Mexico, alleging that\\n\\nAlmanza-Vigil had reentered the country in violation of an outstanding removal order\\n\\nthat had followed an aggravated-felony conviction. Three months later, a grand jury\\n\\nreturned an indictment charging him with illegal reentry in violation of 8 U.S.C.\\n\\n§ 1326(a) and (b).\\n\\n Almanza-Vigil moved to dismiss the indictment by attacking his 2009 removal\\n\\norder—the government’s proof that he had reentered illegally (a felony under\\n\\n8 U.S.C. § 1326) rather than merely entered improperly (a misdemeanor under\\n\\n§ 1325). The 2009 removal order was “improperly issued,” he claimed, because he\\n\\n 9\\n\\fhad never been convicted of an aggravated felony. R. vol. 1 at 54. Had the\\n\\ngovernment realized this, he argued, he would not have been put in expedited\\n\\nremoval proceedings, and he could have applied for (and likely received)\\n\\ndiscretionary relief from removal. But the district court denied the motion and\\n\\nforeclosed Almanza-Vigil’s collateral attack. Twice, Almanza-Vigil asked the court\\n\\nto reconsider this ruling, but twice, the court refused.\\n\\n On December 14, 2015, after denying Almanza-Vigil’s first motion to\\n\\nreconsider, the court held a bench trial. “[B]ased upon the undisputed testimony” that\\n\\nhe had returned to the United States without permission after being deported, the\\n\\ncourt found Almanza-Vigil guilty of violating 8 U.S.C. § 1326(a) and (b). Four\\n\\nweeks later, after denying his second motion to reconsider, the court entered\\n\\njudgment and sentenced Almanza-Vigil to 635 days in prison (approximately time\\n\\nserved—he had been in custody since his arrest on April 19, 2015).4 He immediately\\n\\nappealed.\\n\\n DISCUSSION\\n\\n Almanza-Vigil challenges the district court’s refusal to dismiss the illegal-\\n\\nreentry indictment. On appeal, as in the district court, he disputes the validity of his\\n\\n2009 removal order by arguing that it was entered without due process. When a\\n\\nnoncitizen attacks the constitutionality of a previous removal proceeding in this way,\\n\\nhe presents a mixed question of law and fact that we review de novo. United States v.\\n\\n\\n 4\\n After his release, he returned to Mexico.\\n\\n 10\\n\\fAguirre-Tello, 353 F.3d 1199, 1204 (10th Cir. 2004). But before addressing the\\n\\nmerits of Almanza-Vigil’s appeal, we must narrow the question. To do so, we weave\\n\\ntogether the appeal’s statutory and procedural context.\\n\\n A. How Can a Noncitizen Prosecuted for Illegal Reentry Collaterally\\n Attack the Underlying Removal Order?\\n\\n When the government prosecutes a noncitizen for illegal reentry, it typically\\n\\nmust prove two things: (1) that the noncitizen left the United States with an\\n\\noutstanding order of removal against him and (2) that afterward, the noncitizen\\n\\nentered, tried to enter, or was found in the United States. 8 U.S.C. § 1326(a).\\n\\n When the government offers a previous removal order as evidence of the first\\n\\nelement, the Fifth Amendment protects the noncitizen’s right to challenge that order,\\n\\neven years after the time for appeal has passed and the order has become final.\\n\\nUnited States v. Mendoza-Lopez, 481 U.S. 828, 837–39 (1987); accord United\\n\\nStates v. Adame-Orozco, 607 F.3d 647, 651 (10th Cir. 2010). Congress codified this\\n\\nright in 8 U.S.C. § 1326(d), subject to a noncitizen’s meeting three conditions. See\\n\\nAdame-Orozco, 607 F.3d at 651. To collaterally attack a previous removal order, the\\n\\nnoncitizen must show (1) that he exhausted all administrative remedies available to\\n\\ncontest the previous removal order, (2) that the previous removal proceedings\\n\\ndeprived him of the opportunity to seek judicial review, and (3) that the previous\\n\\norder’s entry was fundamentally unfair. 8 U.S.C. § 1326(d).\\n\\n Here, the district court concluded that, although Almanza-Vigil could satisfy\\n\\nthe first two conditions (administrative exhaustion and denial of judicial review) he\\n\\n\\n 11\\n\\fcould not demonstrate the third condition, that the entry of the 2009 removal order\\n\\nwas fundamentally unfair. That conclusion rested on two, alternate grounds: first, that\\n\\nthe government had correctly classified Almanza-Vigil’s conviction as an aggravated\\n\\nfelony; and second, that the government’s decision to classify his conviction as an\\n\\naggravated felony had not prejudiced him. And because a collateral attack can’t\\n\\nsurvive the failure to meet any of § 1326(d)’s three conditions, the district court\\n\\nrejected Almanza-Vigil’s challenge to the 2009 order’s validity.\\n\\n So the appeal begins with one question: Does Almanza-Vigil’s conviction fit\\n\\nthe INA’s definition of an aggravated felony? Because we answer no, the appeal\\n\\npresents a second question: Did misclassifying the conviction so prejudice Almanza-\\n\\nVigil that the entry of his previous removal order was fundamentally unfair? Because\\n\\nwe again answer no, our inquiry ends there—we can uphold the dismissal of his\\n\\ncollateral attack without reaching § 1326(d)’s other conditions.\\n\\n B. Is “Selling or Distributing” Methamphetamine an Aggravated\\n Felony?\\n\\n The parties dispute whether Almanza-Vigil’s conviction for “selling or\\n\\ndistributing” methamphetamine, see Colo. Rev. Stat. § 18-18-405(a) (2006), qualifies\\n\\nas an aggravated felony under the INA—specifically, whether it meets the definition\\n\\nin 8 U.S.C. § 1101(a)(43)(B): “illicit trafficking in a controlled substance (as defined\\n\\nin [21 U.S.C. § 802]), including a drug trafficking crime (as defined in [18 U.S.C.\\n\\n§ 924(c)]).” We first explain how to compare a state offense to the INA’s definition\\n\\n\\n\\n\\n 12\\n\\fof an aggravated felony. Then, we apply those principles to resolve the parties’\\n\\ndispute.\\n\\n 1. The Categorical and Modified Categorical Approaches to\\n Classifying Offenses\\n\\n “When the government alleges that a state conviction qualifies as an\\n\\n‘aggravated felony’ under the INA, we generally employ a ‘categorical approach’ to\\n\\ndetermine whether the state offense is comparable to an offense listed in the INA.”\\n\\nMoncrieffe v. Holder, 569 U.S. 184, 190 (2013) (citing Nijhawan v. Holder, 557 U.S.\\n\\n29, 33–38 (2009); Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185–87 (2007)). The\\n\\ncategorical approach asks whether the state offense’s definition matches “the\\n\\n‘generic’ federal definition of a corresponding aggravated felony.” Id. (quoting\\n\\nDuenas-Alvarez, 549 U.S. at 186). The state offense fits the generic offense only if it\\n\\n“necessarily” includes the generic federal offense. Id. (quoting Shepard v. United\\n\\nStates, 544 U.S. 13, 24 (2005) (plurality opinion)). We therefore presume that the\\n\\nstate conviction rested on “‘the least of th[e] acts’ criminalized,” then determine\\n\\nwhether the generic federal offense encompasses “even those acts.” Id. at 190–91\\n\\n(alteration in original) (quoting Johnson v. United States, 559 U.S. 133, 137 (2010)).\\n\\n “Whether the noncitizen’s actual conduct involved such facts ‘is quite\\n\\nirrelevant.’” Id. at 190 (quoting United States ex rel. Guarino v. Uhl, 107 F.2d 399,\\n\\n400 (2d Cir. 1939)). The categorical approach focuses on an offense’s elements—the\\n\\n“constituent parts” of its legal definition, “the things the ‘prosecution must prove to\\n\\nsustain a conviction.’” Mathis v. United States, 136 S. Ct. 2243, 2248 (2016)\\n\\n\\n 13\\n\\f(quoting Elements of a Crime, Black’s Law Dictionary (10th ed. 2014)). If the\\n\\ndefendant goes to trial, then the elements are “what the jury must find beyond a\\n\\nreasonable doubt.” Id. (citing Richardson, 526 U.S. at 817). And if the defendant\\n\\npleads guilty, then the elements are what he “necessarily admits.” Id. (citing\\n\\nMcCarthy v. United States, 394 U.S. 456, 466 (1969)). Elements are abstract, in\\n\\ncontrast to “brute facts”—“mere real-world things[] extraneous to the crime’s legal\\n\\nrequirements,” which “need neither be found by a jury nor admitted by a defendant.”\\n\\nId. (first quoting Richardson v. United States, 526 U.S. 813, 817 (1999); and then\\n\\nciting Fact, Black’s Law Dictionary (10th ed. 2014)).\\n\\n When a state statute defines a single crime with a single—that is, indivisible—\\n\\nset of elements, the categorical approach is (relatively) “straightforward”: just “line[]\\n\\nup that crime’s elements alongside those of the generic offense and see[] if they\\n\\nmatch.” Id. But this comparison gets more complicated when a state statute is\\n\\ndivisible—that is, when it creates multiple crimes by listing multiple, alternative\\n\\nelements. Id. at 2249.5\\n\\n When a statute lists alternative elements, the modified categorical approach\\n\\nallows us to glimpse “a limited class of documents” from the previous conviction—\\n\\nthe indictment, the jury instructions, the plea agreement or colloquy—so that we can\\n\\n\\n\\n 5\\n Mathis gives the example of a California law against “‘the lawful or the\\nunlawful entry’ of a premises with intent to steal.” 136 S. Ct. at 2249. This law\\ncreates “two offenses, one more serious than the other.” Id. But only the more serious\\noffense, involving unlawful entry, matches generic federal burglary. Id.\\n\\n 14\\n\\ffigure out which alternative “was integral to the defendant’s conviction (that is,\\n\\nwhich was necessarily found or admitted).” Id. (citing Shepard, 544 U.S. at 26;\\n\\nTaylor, 495 U.S. at 602). Once we’ve discerned which crime, comprising which\\n\\nelements, the noncitizen was convicted of, we can “compare that crime, as the\\n\\ncategorical approach commands, with the relevant generic offense.” Id. But “the\\n\\nmodified categorical approach serves—and serves solely—as a tool to identify the\\n\\nelements of a crime of conviction when a statute’s disjunctive phrasing renders one\\n\\n(or more) of them opaque.” Id. at 2253 (citing Descamps v. United States, 570 U.S.\\n\\n254, 263–64 (2013)). We can’t “repurpose” it to explore whether a conviction, “even\\n\\nthough for a too-broad crime, rested on facts (or otherwise said, involved means) that\\n\\nalso could have satisfied the elements of a generic offense.” Id. at 2254.\\n\\n So, when we encounter a statute that lists alternatives, we face a threshold\\n\\nquestion: does the list enumerate alternative elements, which would allow us to use\\n\\nthe modified categorical approach, or alternative means, which would not?\\n\\n In Mathis, a state-court decision “definitively answer[ed]” the question\\n\\nwhether Iowa Code § 702.12, which prohibits unlawful entry into “any building,\\n\\nstructure, [or] land, water, or air vehicle,” creates alternative crimes or illustrates\\n\\nalternative methods of committing the same crime. Id. at 2256. In State v. Duncan,\\n\\nthe Iowa Supreme Court held that a jury need not unanimously agree on the burgled\\n\\npremises—there, either a boat or a marina—to convict the defendant of burglary;\\n\\neach location was an “alternative method of committing a single crime.” 312 N.W.2d\\n\\n519, 523 (Iowa 1981). Applying Duncan’s logic, Mathis concluded that the Iowa\\n\\n 15\\n\\fstatute’s list of locations “[laid] out alternative ways of satisfying a single, locational\\n\\nelement.” Mathis, 136 S. Ct. at 2250, 2256.6\\n\\n In other cases, the statute itself might resolve the means-or-elements question.\\n\\nId. at 2256. If each alternative carries a different penalty, then to comply with\\n\\nApprendi v. New Jersey, 530 U.S. 466, 490 (2000), the jury must unanimously agree\\n\\non one of them, meaning that the alternatives must be elements. Mathis, 136 S. Ct. at\\n\\n2256 (citing, among other state statutes, Colo. Rev. Stat. § 18-4-203 (2015), which\\n\\ndistinguishes second-degree burglary of a dwelling, a class 3 felony, from second-\\n\\ndegree burglary of any other “building or occupied structure,” a class 4 felony).\\n\\nOther state laws may specify the contents of a charging document: what things\\n\\nprosecutors must charge (elements) and what things they need not charge (means). Id.\\n\\n(citing Cal. Penal Code § 952 (West 2008)).\\n\\n In still other cases, though, state law might fail “to provide clear answers.” Id.\\n\\nThen, the modified categorical approach permits us to glimpse the record of the\\n\\nprevious conviction to determine whether the listed items are elements of the offense.\\n\\nId. at 2256–57 (quoting Rendon v. Holder, 782 F.3d 466, 473–74 (9th Cir. 2015)\\n\\n(Kozinski, J., dissenting from the denial of rehearing en banc)). If these documents\\n\\nreference one alternative “to the exclusion of all others,” that indicates the statute\\n\\n\\n 6\\n Compared to generic burglary, which protects any “building or other\\nstructure,” Iowa burglary reached more places, like vehicles. Mathis, 136 S. Ct. at\\n2250 (quoting Taylor, 495 U.S. at 598). And because the offenses’ locational\\nelements didn’t line up, Mathis concluded that the two did not categorically match.\\nSee id. at 2256–57.\\n\\n 16\\n\\flists several, alternative elements, each defining a separate crime. Id. at 2257. Then—\\n\\nand only then—can we use the documents to identify the crime of conviction. Id.\\n\\n“Conversely,” though, if the indictment and jury instructions reiterate the statutory\\n\\nlist (“building, structure, or vehicle”) or use “a single umbrella term” (like\\n\\n“premises”), that indicates the statute lists alternative means of fulfilling one\\n\\nelement. Id. And if so, we have “no call to decide which of the statutory alternatives\\n\\nwas at issue in the earlier prosecution.” Id. at 2256.\\n\\n Next, we consider what this means for Almanza-Vigil.\\n\\n 2. Does Almanza-Vigil’s Colorado Felony Categorically Match\\n an Aggravated Felony Under the INA?\\n\\n Almanza-Vigil argues that Colorado Revised Statutes § 18-18-405(1)(a)\\n\\n(2006) sweeps too broadly to fit the generic federal offense at issue here—the\\n\\naggravated felony of “illicit trafficking in a controlled substance (as defined in\\n\\n[21 U.S.C. § 802]), including a drug trafficking crime (as defined in [18 U.S.C.\\n\\n§ 924(c)].” 8 U.S.C. § 1101(a)(43)(B).\\n\\n The generic offense encompasses any offense (state or federal) that “proscribes\\n\\nconduct punishable as a felony” under the Controlled Substances Act (CSA), Pub. L.\\n\\nNo. 91-513, 84 Stat. 1242 (1970) (codified as amended at 21 U.S.C. §§ 801–904).\\n\\nLopez v. Gonzales, 549 U.S. 47, 60 (2006); see also Moncrieffe, 569 U.S. at 188.7 By\\n\\n\\n 7\\n To explain this conclusion, Moncrieffe noted that 18 U.S.C. § 924(c)(2)\\ndefines a “drug trafficking crime” as “any felony punishable under” three federal\\nstatutes, including the CSA, and that 18 U.S.C. § 3559(a)(5) classifies an offense as a\\n“felony” if “the maximum term of imprisonment authorized” is more than a year.\\n\\n 17\\n\\fcomparison, the state statute that Almanza-Vigil pleaded guilty to violating, Colorado\\n\\nRevised Statutes § 18-18-405(1)(a) (2006), makes it unlawful “to manufacture,\\n\\ndispense, sell, distribute, possess, or to possess with intent to manufacture, dispense,\\n\\nsell, or distribute a controlled substance” (among other acts). As even the government\\n\\nconcedes, the least of the acts criminalized—simple possession—is not a felony\\n\\nunder the CSA. See 21 U.S.C. § 844(a) (setting a ceiling of a year’s imprisonment for\\n\\na defendant’s first possession conviction); accord Lopez, 549 U.S. at 53. So, if the\\n\\nstatute is indivisible, then Almanza-Vigil is correct—it doesn’t match the generic\\n\\noffense.\\n\\n But the government contends that the Colorado statute is divisible and that,\\n\\nunder the modified categorical approach, Almanza-Vigil pleaded guilty to a crime the\\n\\ngovernment terms “distribution of methamphetamine,” which it claims “clearly\\n\\nconstitutes” the generic federal crime of illicit drug trafficking. Appellee’s Answer\\n\\nBr. at 26. We disagree.\\n\\n Last year, two Tenth Circuit cases considered the scope of a “controlled\\n\\nsubstance offense,” one of two categories of previous convictions that enhance the\\n\\nsentence of a “career offender” under the federal sentencing guidelines. United\\n\\nStates v. McKibbon, 878 F.3d 967, 971–76 (10th Cir. 2017); United States v.\\n\\nMadkins, 866 F.3d 1136, 1144–48 (10th Cir. 2017); see also U.S. Sentencing\\n\\nGuidelines Manual § 4B1.1(a) (U.S. Sentencing Comm’n 2018). Like the INA’s\\n\\ndefinition of a drug-trafficking offense, the guidelines’ definition of a “controlled\\n\\nsubstance offense” encompasses all state or federal offenses (1) that are punishable\\n\\n 18\\n\\fby more than a year’s imprisonment and (2) that proscribe the “manufacture, import,\\n\\nexport, distribution, or dispensing of a controlled substance,” or the “aiding[,] . . .\\n\\nabetting, conspiring, [or] attempting to commit such offenses.” U.S.S.G. § 4B1.2(b)\\n\\n& cmt. n.1. To this definition, Madkins and McKibbon hitched the CSA’s definition\\n\\nof distribution: “delivery” of the controlled substance. 21 U.S.C. § 802(11); see also\\n\\nMcKibbon, 878 F.3d at 972; Madkins, 866 F.3d at 1144.\\n\\n Both decisions then compared that definition to the defendants’ previous\\n\\nconvictions: Madkins’s convictions for the Kansas crimes of “possession with intent\\n\\nto sell, deliver, or distribute” cocaine and marijuana, and McKibbon’s conviction for\\n\\nthe Colorado crime at issue here (albeit a newer iteration, which had dropped simple\\n\\npossession from its list of proscribed acts). Madkins, 866 F.3d at 1145 (quoting\\n\\nKan. Stat. Ann. §§ 65-4161(a), 65-4163(a)(3) (2001)); McKibbon, 878 F.3d at 971–\\n\\n74 (citing Colo. Rev. Stat. § 18-18-405(1)(a) (2014)). The McKibbon court noted that\\n\\nColorado’s uniform controlled-substances act defines a “sale” to include “a barter, an\\n\\nexchange, or a gift, or an offer therefor.” Colo. Rev. Stat. § 18-18-403(1) (emphasis\\n\\nadded); McKibbon, 878 F.3d at 971. Likewise, the Madkins court observed that\\n\\nKansas law defines a “sale” to include an “offer to sell.” 866 F.3d at 1145.\\n\\nIncorporating each state’s definition of a “sale” into its proscription on “selling or\\n\\ndistributing” a controlled substance, both Madkins and McKibbon determined that the\\n\\nstates’ drug laws swept in more conduct—including offers to sell a controlled\\n\\nsubstance—than fit within the guidelines’ definition of a “controlled substance\\n\\noffense.” McKibbon, 878 F.3d at 972; Madkins, 866 F.3d at 1145–46 (citing United\\n\\n 19\\n\\fStates v. Hinkle, 832 F.3d 569, 576–77 (5th Cir. 2017) (concluding that a similar\\n\\nTexas statute was broader than the guidelines’ definition); United States v. Savage,\\n\\n542 F.3d 959, 966 (2d Cir. 2008) (concluding that a similar Connecticut statute was\\n\\nlikewise “overly inclusive”)). And because the elements didn’t line up, there was a\\n\\ncategorical mismatch.\\n\\n That was so, Madkins and McKibbon concluded, even though a “controlled\\n\\nsubstance offense” includes an attempt to distribute the controlled substance. See\\n\\nU.S.S.G. § 4B1.2 cmt. n.1. As Madkins explained, “an attempt to commit a crime\\n\\nrequires the intent to commit the crime and overt acts in furtherance of that intent.”\\n\\n866 F.3d at 1147 (quoting United States v. Taylor, 413 F.3d 1146, 1155 (10th Cir.\\n\\n2005)). Yet a person can offer to sell a controlled substance (an overt act) without\\n\\nintending to complete the sale. Id. Stated otherwise, an offer to sell can be fraudulent,\\n\\n“such as when one offers to sell the Brooklyn Bridge.” Id. (quoting Savage, 542 F.3d\\n\\nat 965). Unless we read in limiting language (which is out of bounds during statutory\\n\\nconstruction), a state law that proscribes all “offers” to sell a controlled substance\\n\\ncovers both the bona fide and the fraudulent. And because a fraudulent offer lacks\\n\\n“the intent to sell or distribute” that an attempt requires, a conviction for “selling or\\n\\ndistributing” a controlled substance (in any state that defines “sale” to include all\\n\\noffers) criminalizes a broader swath of conduct than the guidelines’ definition of a\\n\\n“controlled substance offense.” Id. at 1148.\\n\\n Madkins and (four months later) McKibbon thus both concluded that the\\n\\nguidelines’ definition of a “controlled substance offense” excludes convictions under\\n\\n 20\\n\\fstate statutes that proscribe “offers” to sell a controlled substance. McKibbon,\\n\\n878 F.3d at 972; Madkins, 866 F.3d at 1145. The least of the acts criminalized under\\n\\nsuch a state statute is a fraudulent offer to sell a controlled substance, which does not\\n\\nconstitute a “controlled substance offense” under the guidelines. Cf. Moncrieffe,\\n\\n569 U.S. at 191 (quoting Johnson, 559 U.S. at 137). So, “the two are not a\\n\\ncategorical match.” Madkins, 866 F.3d at 1147.\\n\\n In reaching this conclusion, McKibbon addressed but rejected the\\n\\ngovernment’s contention (which it raises again here) that Colorado Revised Statutes\\n\\n§ 18-18-405(1)(a) is divisible, “setting forth multiple elements of multiple criminal\\n\\noffenses, including manufacturing, dispensing, distributing, selling, or offering to sell\\n\\na controlled substance.” 878 F.3d at 974. If the government’s argument were correct,\\n\\nthen the court could have used the modified categorical approach to determine the\\n\\noffense to which McKibbon had pleaded guilty (and then compared that offense to\\n\\nthe guidelines’ definition). Id. But the court deemed the statute indivisible based on\\n\\nthe Colorado Supreme Court’s decision in People v. Abiodun, 111 P.3d 462 (Colo.\\n\\n2005). McKibbon, 878 F.3d at 974–75. As Mathis suggested it might, the Colorado\\n\\ncourt’s decision definitively answered the elements-or-means question—and its\\n\\nanswer was “means.” Id. at 974 (citing Mathis, 136 S. Ct. at 2256).\\n\\n\\n\\n\\n 21\\n\\f In Abiodun, the Colorado Supreme Court held that Colorado Revised Statutes\\n\\n§ 18-18-4058 defines a single offense for double-jeopardy purposes:\\n\\n Nothing in the specific language of the statute or the history of its\\n enactment suggests an intent to create a separate offense for each\\n proscribed act. On the contrary, the scope and structure of the proscriptive\\n provision, combined with sentencing provisions differentiating\\n punishments on the basis of the quantum of drugs (rather than the act)\\n involved, strongly points to the creation of a single crime, the gravamen\\n of which is preventing the unauthorized delivery of a “particular quantity\\n of a particular contraband substance.” . . . . Rather than completely\\n separate offenses, the statute strongly suggests an intent to “criminalize\\n successive stages of a single undertaking,” . . . “encompass[ing] every act\\n and activity which could lead to the proliferation of drug traffic.”\\n\\n111 P.3d at 466–67 (alteration in original) (citations omitted) (first quoting Lopez v.\\n\\nState, 108 S.W.3d 293, 299 (Tex. Crim. App.2003); then quoting United States v.\\n\\nMendoza, 902 F.2d 693, 697 (8th Cir. 1990); and then quoting United States v.\\n\\nGomez, 593 F.3d 210, 213 (3d Cir. 1979)). In McKibbon’s view, Abiodun squarely\\n\\naddressed divisibility by “holding that the state legislature intended to create a single\\n\\nunitary offense when it enacted the ‘alternatively-phrased’ § 18-18-405(1)(a).”\\n\\nMcKibbon, 878 F.3d at 975 (quoting Mathis, 136 S. Ct. at 2249). Not only that,\\n\\nMcKibbon added, Abiodun interpreted the Colorado statute to dole out the same\\n\\npunishments regardless of “whether a defendant manufactured or distributed or\\n\\noffered to sell a controlled substance.” Id. (citing Mathis, 136 S. Ct. at 2256).\\n\\n\\n 8\\n Abiodun reviewed convictions that occurred sometime between 2001 and\\n2003, when the drug laws were the same as in 2006 (Almanza-Vigil’s day)—and\\nwhen § 18-18-405(1)(a) proscribed simple possession. See People v. Abiodun,\\n87 P.3d 164, 165 (Colo. App. 2003). The Colorado legislature struck simple\\npossession only in 2010. See supra note 2.\\n\\n 22\\n\\f Yet even if Abiodun’s message on divisibility were uncertain, Mathis’s final\\n\\nsuggestion—“if state law fails to provide clear answers”—allowed the McKibbon\\n\\ncourt to “peek” at the record of the previous conviction. Id. at 976 (quoting Mathis,\\n\\n136 S. Ct. at 2256–57). And there, the court saw that McKibbon had pleaded guilty to\\n\\nviolating Colorado Revised Statutes § 18-18-405(1)(a) by “either selling or\\n\\ndistributing heroin.” Id. So under Mathis, the court concluded, McKibbon’s previous\\n\\nrecord indicated that “selling or distributing” a controlled substance were alternative\\n\\nmeans of committing a single, indivisible offense. Id. (citing Mathis, 136 S. Ct. at\\n\\n2248).9\\n\\n Madkins and McKibbon thus crafted a general rule: if state law criminalizes\\n\\nfraudulent offers to sell a controlled substance, then a conviction under that state law\\n\\nis a categorical mismatch for the guidelines’ generic “controlled substance offense.”\\n\\nHere, we take their logic another step, into the immigration context. Like the generic\\n\\n“controlled substance offense” under the guidelines, the generic offense of “illicit\\n\\ntrafficking in a controlled substance” under the INA encompasses all state offenses\\n\\nthat are felonies under the CSA. Compare Lopez, 569 U.S. at 60 (defining the scope\\n\\nof “illicit trafficking in a controlled substance” under 8 U.S.C. § 1101(a)(43)(B)),\\n\\n\\n\\n 9\\n Madkins also addressed divisibility, but it deemed the Kansas statutes\\ndivisible. 866 F.3d at 1145 (discussing Kan. Stat. Ann. §§ 65-4151(a),\\n65-4163(a)(3)). That didn’t matter in the end, though, because Madkins had pleaded\\nguilty to possession with intent to sell cocaine and marijuana. Id. And the court\\ndetermined that under Kansas law, these offenses covered possession with the intent\\nto offer to sell cocaine and marijuana. See id.\\n\\n 23\\n\\fwith McKibbon, 878 F.3d at 972, and Madkins, 866 F.3d at 1144 (defining the scope\\n\\nof a “controlled substance offense” under U.S.S.G. § 4B1.2(b)). And according to\\n\\nMadkins and McKibbon, the felony offenses of distribution and attempted\\n\\ndistribution under the CSA exclude fraudulent offers to sell. See 21 U.S.C.\\n\\n§§ 802(11), 802(8), 841(a)(1) (prohibiting only the actual or attempted delivery of a\\n\\ncontrolled substance). So, a state statute that proscribes all offers to sell a controlled\\n\\nsubstance, including fraudulent ones, criminalizes more conduct than (and is a\\n\\ncategorical mismatch for) the INA’s definition of “illicit trafficking in a controlled\\n\\nsubstance.” See 8 U.S.C. § 1101(a)(43)(B).\\n\\n As for the state statute at issue here, McKibbon further tells us that Colorado\\n\\nRevised Statutes § 18-18-405(1)(a) is indivisible—at least to the extent that “selling\\n\\nor distributing” a controlled substance are alternative means of committing a single\\n\\noffense. McKibbon, 878 F.3d at 974; see also id. at 976. McKibbon thus specifically\\n\\nrejected the argument that the government makes here: that we can use the modified\\n\\ncategorical approach to define Almanza-Vigil’s crime of conviction more narrowly,\\n\\nas “distributing” methamphetamine. See id. at 974–76.\\n\\n And like in McKibbon, even if we do use the modified categorical approach to\\n\\n“peek” at the record of Almanza-Vigil’s previous conviction, we see that he was\\n\\nconvicted of “selling or distributing” methamphetamine. Of the six counts in the\\n\\ncomplaint, he pleaded guilty to the first:\\n\\n COUNT 1 - DISTRIBUTION OF A CONTROLLED SUBSTANCE -\\n SCHEDULE II (F-3)\\n\\n\\n 24\\n\\f On or About September 15, 2006, OSCAR ALMANZA-VIGIL\\n unlawfully, feloniously, and knowingly sold or distributed\\n METHAMPHETAMINE, a schedule II controlled substance; in violation\\n of section 18-18-405(1),(2)(a)(I)(A), C.R.S.\\n\\nSuppl. R. vol. 2 at 3 (bolding removed). And according to Mathis, when an\\n\\nindictment reiterates the statute’s alternatives (here: “sold or distributed”), it’s “as\\n\\nclear an indication as any that each alternative is only a possible means of\\n\\ncommission, not an element that the prosecutor must prove to a jury beyond a\\n\\nreasonable doubt.” 136 S. Ct. at 2257. Nor does it matter that when pressed for space,\\n\\nthe state-court judgment labeled the charge “Controlled subst-Distribute.” Suppl. R.\\n\\nvol. 2 at 5. The modified categorical approach limits our record inquiry “to the terms\\n\\nof the charging document, the terms of a plea agreement or transcript of\\n\\ncolloquy . . . , or to some comparable judicial record of this information.” Shepard,\\n\\n544 U.S. at 26; see also Mathis, 136 S. Ct. at 2249. And here, the charging language\\n\\nin count one shows that Almanza-Vigil pleaded guilty to “selling or distributing”\\n\\nmethamphetamine. Suppl. R. vol. 2 at 3.\\n\\n Accordingly, it doesn’t matter whether we apply the categorical approach or\\n\\nthe modified categorical approach. Either way, Almanza-Vigil’s crime of conviction\\n\\nis “selling or distributing” a controlled substance in violation of Colorado Revised\\n\\nStatutes § 18-18-405(1)(a). And because that crime comprises fraudulent offers to\\n\\nsell a controlled substance, it does not categorically match the aggravated felony of\\n\\n“illicit trafficking in a controlled substance . . . , including a drug trafficking crime.”\\n\\n8 U.S.C. § 1101(a)(43)(B). Cf. McKibbon, 878 F.3d at 976.\\n\\n\\n 25\\n\\f That leaves a final question: Even though the government misclassified\\n\\nAlmanza-Vigil’s Colorado conviction as an aggravated felony, which resulted in\\n\\nexpedited removal proceedings and the denial of any opportunity for discretionary\\n\\nrelief, can he additionally show that the entry of his previous removal order was\\n\\n“fundamentally unfair”? 8 U.S.C. § 1326(d)(3).\\n\\n C. Did Misclassifying Almanza-Vigil’s Colorado Conviction Render\\n the Entry of his 2009 Removal Order Fundamentally Unfair?\\n\\n Almanza-Vigil argues that the government’s misclassification of his Colorado\\n\\nconviction as an aggravated felony prejudiced him because, outside expedited\\n\\nremoval proceedings, he could have applied for and received relief from removal,\\n\\nsuch as voluntary departure or cancellation of removal.10\\n\\n In Aguirre-Tello, we required a noncitizen alleging that the entry of a previous\\n\\nremoval order was fundamentally unfair to meet a reasonable-likelihood standard.\\n\\n353 F.3d at 1209; see also 8 U.S.C. § 1326(d)(3). To demonstrate fundamental\\n\\nunfairness, the noncitizen must establish a reasonable likelihood that, but for the\\n\\n\\n\\n\\n 10\\n We agree with Almanza-Vigil that S.E.C. v. Chenery Corp. would bar us\\nfrom upholding his removal order on grounds different from those stated in that\\norder. See 332 U.S. 194, 196 (1947) (“[A] reviewing court, in dealing with a\\ndetermination or judgment which an administrative agency alone is authorized to\\nmake, must judge the propriety of such action solely by the grounds invoked by the\\nagency.”). But 8 U.S.C. § 1326(d)(3) prohibits us from addressing the removal order\\nitself unless Almanza-Vigil can establish that the order’s entry was fundamentally\\nunfair. And as Almanza-Vigil’s arguments throughout this case show, the\\nfundamental-unfairness inquiry hinges on Almanza-Vigil’s chances of receiving\\nrelief from removal.\\n\\n\\n 26\\n\\fcomplained-of error, he would have avoided removal. Aguirre-Tello, 353 F.3d at\\n\\n1208 (quoting United States v. Calderon-Pena, 339 F.3d 320, 324 (5th Cir. 2003)).\\n\\nBut in a footnote, Aguirre-Tello noted “the inherent difficulty in demonstrating\\n\\nprejudice from the denial of eligibility for discretionary relief.” Id. at 1209 n.8 (citing\\n\\nMejia Rodriguez v. Reno, 178 F.3d 1139, 1148 (11th Cir. 1999)). The Aguirre-Tello\\n\\ncourt quoted Mejia-Rodriguez, where the Eleventh Circuit warned:\\n\\n An alien’s actual chances of receiving such discretionary relief\\n [suspension of deportation]11 are too speculative, and too far beyond the\\n capability of judicial review, to conclude that the alien has actually\\n suffered prejudice from being ineligible for suspension of\\n deportation . . . . Just as a court cannot review the inherently ‘subjective’\\n judgments made by the executive in deciding whether to commute a life\\n sentence, this Court cannot predict the subjective and fact-intensive\\n judgments that the Attorney General would make in deciding whether to\\n grant extraordinary relief, such as the suspension of deportation . . . . The\\n alien cannot demonstrate prejudice, much less substantial prejudice,\\n arising from the ineligibility for such an ‘act of grace’ because no\\n standards exist for a court to determine whether the executive would have\\n granted the extraordinary relief anyway.\\n\\nId. (quoting Mejia-Rodriguez, 178 F.3d at 1148).\\n\\n At the threshold, we disagree with the district court that Almanza-Vigil’s odds\\n\\nof receiving “an ‘act of grace’ in the form of discretionary relief” present an inquiry\\n\\n“too speculative” for judicial examination. R. vol. 1 at 470 (quoting Aguirre-Tello,\\n\\n353 F.3d at 1209 n.8). Aguirre-Tello itself did not consider the petitioning\\n\\n\\n\\n\\n 11\\n Under the current statutory scheme, “suspension of removal” corresponds to\\ncancellation of removal under 8 U.S.C. § 1229b. See Immigration and Naturalization\\nAct § 244, Pub. L. No. 82-414, 66 Stat. 163, 8 U.S.C. § 1254 (1994) (repealed).\\n\\n\\n 27\\n\\fnoncitizen’s claim too speculative, despite hinting at the “inherent difficulty” of\\n\\nsuccess. 353 F.3d at 1209 n.8. Instead, the court explored the likelihood that he could\\n\\nhave received “a § 212(c) waiver12 from deportation.” See id. at 1209–10.\\n\\nAccordingly, we will, too.\\n\\n We turn to whether, absent the government’s misclassification of his Colorado\\n\\nconviction as an aggravated felony, Almanza-Vigil had a reasonable likelihood of\\n\\nreceiving either cancellation of removal or voluntary departure.\\n\\n 1. Cancellation of Removal\\n\\n The INA gives the Attorney General discretion to cancel the removal of an\\n\\notherwise-removable, non-permanent-resident “alien” who:\\n\\n (A) has been physically present in the United States for a continuous\\n period of not less than 10 years immediately preceding the date of\\n [his] application [for cancellation of removal];\\n\\n (B) has been a person of good moral character during such period;\\n\\n (C) has not been convicted of an offense under [8 U.S.C.\\n §§ ]1182(a)(2) [including “any law or regulation of a State . . .\\n relating to a controlled substance (as defined in section 802 of Title\\n 21)”], 1227(a)(2) [including an aggravated felony or “any law or\\n regulation of a State . . . relating to a controlled substance”], or\\n\\n\\n\\n 12\\n Before Congress enacted the Antiterrorism and Effective Death Penalty Act\\n(AEDPA), section 212(c) of the INA, codified at 8 U.S.C. § 1182(c), gave the\\nAttorney General broad discretion to waive deportation for resident noncitizens. See\\nINS v. St. Cyr, 533 U.S. 289, 294–95 (2001). In 1996, AEDPA “reduced” the class of\\nnoncitizens eligible for such discretionary relief by identifying “a broad set of\\noffenses for which conviction would preclude such relief.” Id. at 297. Later that year,\\nCongress passed the Illegal Immigrant Reform and Immigrant Responsibility Act of\\n1996, which repealed 8 U.S.C. § 1182(c) and created 8 U.S.C. § 1229b, permitting\\n“cancellation of removal” for a much narrower class of resident noncitizens. Id.\\n\\n 28\\n\\f 1227(a)(3) [failure to register and falsification of documents] . . . ;\\n and\\n\\n (D) establishes that removal would result in exceptional and extremely\\n unusual hardship to the alien’s spouse, parent, or child, who is a\\n citizen of the United States or an alien lawfully admitted for\\n permanent residence.\\n\\n8 U.S.C. § 1229b(b)(1).\\n\\n Almanza-Vigil claims that, “had the relevant officials realized his conviction\\n\\nwas not an aggravated felony,” he would have had a reasonable likelihood of\\n\\nreceiving cancellation of removal. Appellant’s Brief-in-Chief at 37. He submits the\\n\\ntestimony of his immigration-law expert, Mr. Olsi Vrapi, a “Criminal immigration”\\n\\nlaw professor at the University of New Mexico School of Law and a practicing\\n\\nattorney who has represented hundreds of noncitizens in immigration proceedings. R.\\n\\nvol. 1 at 186:20. At the motion-to-dismiss hearing, Vrapi said that Almanza-Vigil\\n\\nwas “eligible for this form of relief” despite having pleaded guilty to “selling or\\n\\ndistributing” methamphetamine. R. vol. 1 at 206:25–207:1.\\n\\n We disagree. Though “selling or distributing” methamphetamine is not an\\n\\naggravated felony under the INA, it does violate “a[] law or regulation of a State . . .\\n\\nrelating to a controlled substance,” namely, Colorado Revised Statutes\\n\\n§ 18-18-405(1)(a). 8 U.S.C. §§ 1182(a)(2), 1227(a)(2). Almanza-Vigil’s Colorado\\n\\nconviction thus qualifies as an offense under both § 1182(a)(2) and § 1227(a)(2),\\n\\nwhich would have disqualified him from receiving cancellation of removal under\\n\\n8 U.S.C. § 1229b(b)(1)(C).\\n\\n\\n\\n 29\\n\\f 2. Voluntary Departure\\n\\n Compared to cancellation of removal, voluntary departure is available to a\\n\\nbroader class of noncitizens. The INA excludes only aggravated felons, 8 U.S.C.\\n\\n§ 1227(a)(2)(A)(iii), those engaged in terrorist activities, id. § 1227(a)(4)(B), and\\n\\nsome noncitizens “previously permitted to so depart,” from this form of relief. See id.\\n\\n§§ 1229c(a)(1), 1229c(c). Any other noncitizen may seek permission to depart at his\\n\\nown expense instead of commencing, or before completing, removal proceedings. See\\n\\nid. § 1229c(a)(1). Alternatively, at the end of removal proceedings, a noncitizen who\\n\\nmeets certain conditions may seek an order from the immigration judge “granting\\n\\nvoluntary departure in lieu of removal.” Id. § 1229c(b)(1). To receive such an order,\\n\\nthe “alien” must:\\n\\n (A) . . . [have] been physically present in the United States for a period\\n of at least one year immediately preceding the date the notice to\\n appear was served . . . ;\\n\\n (B) . . . [be, and have] been, a person of good moral character for at\\n least 5 years immediately preceding the alien’s application for\\n voluntary departure;\\n\\n (C) . . . not [be] deportable under section 1227(a)(2)(A)(iii)\\n [aggravated-felony convictions] or section 1227(a)(4) [security-\\n related grounds, including terrorist activities] . . . ; and\\n\\n (D) . . . establish[] by clear and convincing evidence that the alien has\\n the means to depart the United States and intends to do so.\\n\\nId.; see also 8 C.F.R. § 1240.26.\\n\\n Almanza-Vigil’s Colorado conviction was not an aggravated felony, and\\n\\nnothing in the record suggests that he poses a national-security risk. So, we agree\\n\\nwith Almanza-Vigil that even with his criminal record, he was eligible to receive\\n 30\\n\\fvoluntary departure in 2009, at least before the completion of removal proceedings.13\\n\\nBut we disagree that he was reasonably likely to receive it. See Aguirre-Tello,\\n\\n353 F.3d at 1209.\\n\\n In exercising their discretion to grant or deny a voluntary-departure\\n\\napplication, immigration judges balance the applicant’s positive equities, like lengthy\\n\\nresidence in the United States and close ties to family here, against negative factors,\\n\\nlike an unfavorable immigration history or a criminal record, and then decide whether\\n\\nthe applicant is worthy of an exercise of discretion. See Matter of Gamboa, 14 I & N.\\n\\nDec. 244, 248 (BIA 1972); accord United States v. Valdez-Novoa, 780 F.3d 906,\\n\\n917–21 (9th Cir. 2015) (applying Gamboa’s balancing principle in the context of\\n\\n§ 1326(d)’s fundamental-unfairness prong).\\n\\n Almanza-Vigil, bolstered by Vrapi’s testimony, asserts that an immigration\\n\\njudge considering the equities of his case would have found him worthy of voluntary\\n\\ndeparture. He had grown up in the United States since age eight; he had learned\\n\\nEnglish, graduated from high school, and worked a steady job; and he had many\\n\\n\\n\\n 13\\n Had Almanza-Vigil received voluntary departure either before the end, or at\\nthe end, of the removal proceedings, the immigration judge would have entered an\\n“alternate order of removal.” 8 C.F.R. § 1240.26(d); see also 8 U.S.C. § 1229c(b)(1).\\nNeither party addressed how such an order might affect subsequent illegal-reentry\\nproceedings. But had Almanza-Vigil returned after the entry of such an order, he\\nwould have “departed the United States while an order of exclusion, deportation, or\\nremoval [wa]s outstanding, and thereafter . . . enter[ed] . . . the United States,” thus\\nviolating 8 U.S.C. § 1326(a). (He would not, though, be subject to the twenty-year\\nmaximum prison sentence for those “whose removal was subsequent to a conviction\\nfor commission of an aggravated felony.” 8 U.S.C. § 1326(b)(2).)\\n\\n 31\\n\\fcitizen and lawful-permanent-resident family members, including a son born here.\\n\\nHis “only negative equity” was his conviction for “selling or distributing”\\n\\nmethamphetamine. Appellant’s Brief-in-Chief at 35. And Vrapi told the court that\\n\\nwith the counterweight of his positive factors, Almanza-Vigil “had a reasonable\\n\\nlikelihood of receiving” voluntary departure despite this conviction. R. vol. 1 at\\n\\n212:17–18. Voluntary departure, Vrapi explained, was “fairly easy” to get and “fairly\\n\\ntypical to be granted,” absent “some egregious circumstance” (like “[p]rior violations\\n\\nof other voluntary returns,” “disregard of border laws,” or “criminal acts”). Id. vol. 1\\n\\nat 211:21, 211:25–212:1, 212:4–7. Though he couldn’t give numbers, Vrapi said that\\n\\nhis clients had “gotten voluntary departure, even with felonies.” Id. vol. 1 at 212:12–\\n\\n13.\\n\\n In further support, Almanza-Vigil cites cases in which noncitizens with\\n\\ncriminal records worse than his have won this form of relief. In his best example, In\\n\\nre: Luis Alonzo Gonzales-Figueroa, the Board of Immigration Appeals upheld an\\n\\nimmigration judge’s decision to grant voluntary departure to an applicant with\\n\\n“numerous arrests,” four assault convictions (the last of which sent him to prison for\\n\\nsix months), and one resisting-arrest conviction. 2006 WL 729784, at *1 (BIA\\n\\nFeb. 10, 2006). Considering Gonzales-Figueroa’s countervailing positive equities,\\n\\nlike his lengthy residence in the country, his participation in Alcoholics Anonymous,\\n\\nand the testimony of his mother and sister, both U.S. citizens, that he had quit\\n\\ndrinking and helped his mother pay the bills, the board ruled that the immigration\\n\\njudge had not abused his discretion. Id. at *1–2.\\n\\n 32\\n\\f But as the Ninth Circuit observed in Valdez-Novoa, “a single case that is\\n\\narguably on point means only that it is ‘possible’ or ‘conceivable’ that a similarly\\n\\nsituated alien would be afforded voluntary departure.” 780 F.3d at 920. The same\\n\\npoint dampens Vrapi’s helpfulness here. Vrapi could not quantify Almanza-Vigil’s\\n\\nchances, nor could he describe any case in which an immigration judge had allowed\\n\\nsomeone convicted of “selling or distributing” methamphetamine to depart\\n\\nvoluntarily. Vrapi’s conclusory assertions that voluntary-departure relief is “fairly”\\n\\nlikely overall and would have been “reasonably” likely in Almanza-Vigil’s case\\n\\ncannot substitute for such empirical or anecdotal evidence. (Tellingly, Vrapi was\\n\\nunfamiliar with the Aguirre-Tello decision.) Our reasoning parallels the analysis in\\n\\nUnited States v. Reyes-Alvares, which involved the same expert witness and a similar\\n\\nfact pattern. No. CR 15-4121 KG, 2016 WL 10720854, at *1, *5 (D.N.M. Feb. 19,\\n\\n2016). There, the district court found Vrapi’s examples distinguishable from the case\\n\\nat bar, so it discounted his testimony “that ‘IJs ‘hand[ ][voluntary departures] out like\\n\\ncandy.’” Id. at *6–7 (alterations in original). Even added to decisions like Gonzales-\\n\\nFigueroa, Vrapi’s testimony here establishes only the possibility that Almanza-Vigil\\n\\nmight have received voluntary departure had his Colorado conviction been properly\\n\\nclassified; it doesn’t establish a reasonable likelihood.\\n\\n Almanza-Vigil has close ties to this country, including a U.S.-citizen son, but\\n\\nin 2009, when the government issued his removal order, he had just been released\\n\\nfrom prison for “selling or distributing” methamphetamine—a serious crime in the\\n\\ncolloquial sense, if not technically an aggravated felony under the INA. See 8 U.S.C.\\n\\n 33\\n\\f§ 1101(a)(43)(B). And unlike the applicant in Gonzales-Figueroa, Almanza-Vigil\\n\\noffered no evidence of rehabilitation. See 2006 WL 729784, at *1–2. As a result, he\\n\\ncan’t meet his burden of showing a “reasonable likelihood that, in deciding who is\\n\\ndeserving of discretionary relief from deportation among the many aliens eligible for\\n\\nsuch relief, the Attorney General would grant relief to one so recently convicted of\\n\\nsuch a serious . . . crime.” Aguirre-Tello, 353 F.3d at 1209.\\n\\n We agree with the district court that Almanza-Vigil failed to satisfy the\\n\\nfundamental-unfairness prong of 8 U.S.C. § 1326(d)(3). And without satisfying that\\n\\ncondition, the INA precludes him from collaterally attacking his 2009 removal order\\n\\nin the illegal-reentry prosecution. See 8 U.S.C. § 1326(d).\\n\\n CONCLUSION\\n\\n For these reasons, we affirm the district court’s judgment.\\n\\n\\n\\n\\n 34\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":377,"cells":{"id":{"kind":"number","value":4580578,"string":"4,580,578"},"name":{"kind":"string","value":"Marcia W. DAVILLA; Benjamin Blackstar; Thomas Blackstar, III; Vannette M. Branham; Edmond L. Carter; Patricia Carter Files; Harold F. Dupoint; Carrie G. Dupoint; Rudolph W. Fisher, Jr.; Cameron Keahbone; Sindy M. Keahbone; Gilbert C. Keahbone; Mark B. Keahbone; Mari L. Keahbone; Perry K. Keahbone; Blake E. Keahbone; Patrick Keahbone, Jr.; Edbert E. Keahbone, Jr.; Rena A. Killsfirst; Katina S. Lipton; Janice C. Mammedaty; Amanda M. McCarthy; Michael R. McCarthy; Mayredena M. Palmer; Rachel M. Palmer; Megan L. Palmer; Lauren Silverbird; Angela R. Silverhorn; Harvey E. Tucker; William K. Ware; Samuel M. Ware; Matthew M. Ware; Betty L. Ware; Corey Ware; Patricia Ware ; Jean Ware ; Wesley Ware, III; Melva J. Wermy, Plaintiffs-Appellees, v. ENABLE MIDSTREAM PARTNERS L.P.; Enable G.P., LLC; Enable Oklahoma Intrastate Transmission LLC, Formerly Known as Enogex, LLC, Defendants-Appellants."},"name_abbreviation":{"kind":"string","value":"Davilla v. Enable Midstream Partners L.P."},"decision_date":{"kind":"string","value":"2019-01-10"},"docket_number":{"kind":"string","value":"17-6088"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Tymkovich, Lucero, Hartz\", \"parties\": \"\", \"opinions\": [{\"author\": \"TYMKOVICH, Chief Judge\", \"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n Tenth Circuit\\n\\n PUBLISH January 10, 2019\\n Elisabeth A. Shumaker\\n UNITED STATES COURT OF APPEALS Clerk of Court\\n\\n TENTH CIRCUIT\\n\\n\\n\\nMARCIA W. DAVILLA; BENJAMIN\\nBLACKSTAR; THOMAS\\nBLACKSTAR, III; VANNETTE M.\\nBRANHAM; EDMOND L. CARTER;\\nPATRICIA CARTER FILES;\\nHAROLD F. DUPOINT; CARRIE G.\\nDUPOINT; RUDOLPH W. FISHER,\\nJR.; CAMERON KEAHBONE;\\nSINDY M. KEAHBONE; GILBERT\\nC. KEAHBONE; MARK B.\\nKEAHBONE; MARI L. KEAHBONE;\\nPERRY K. KEAHBONE; BLAKE E.\\nKEAHBONE; PATRICK\\nKEAHBONE, JR.; EDBERT E.\\nKEAHBONE, JR.; RENA A.\\nKILLSFIRST; KATINA S. LIPTON;\\nJANICE C. MAMMEDATY;\\nAMANDA M. MCCARTHY;\\nMICHAEL R. MCCARTHY;\\nMAYREDENA M. PALMER;\\nRACHEL M. PALMER; MEGAN L.\\nPALMER; LAUREN SILVERBIRD;\\nANGELA R. SILVERHORN;\\nHARVEY E. TUCKER; WILLIAM K.\\nWARE; SAMUEL M. WARE;\\nMATTHEW M. WARE; BETTY L.\\nWARE; COREY WARE; PATRICIA\\nWARE; JEAN WARE; WESLEY\\nWARE, III; MELVA J. WERMY,\\n\\n Plaintiffs - Appellees,\\nv. No. 17-6088\\n\\f ENABLE MIDSTREAM PARTNERS\\n L.P.; ENABLE G.P., LLC; ENABLE\\n OKLAHOMA INTRASTATE\\n TRANSMISSION LLC, formerly\\n known as Enogex, LLC,\\n\\n Defendants - Appellants.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE WESTERN DISTRICT OF OKLAHOMA\\n (D.C. NO. 5:15-CV-01262-M)\\n\\n\\nAndrew W. Lester (Barry L. Pickens, Spencer Fane LLP, Overland Park, Kansas,\\nwith him on the briefs), Spencer Fane LLP, Oklahoma City, Oklahoma, for\\nAppellants.\\n\\nDustin T. Greene (David C. Smith, Kilpatrick Townsend & Stockton LLP,\\nWashington, D.C., and Thurston H. Webb, Kilpatrick Townsend & Stockton LLP,\\nAtlanta, Georgia, with him on the brief), Kilpatrick Townsend & Stockton LLP,\\nWinston-Salem, North Carolina, for Appellees.\\n\\n\\nBefore TYMKOVICH, Chief Judge, LUCERO and HARTZ, Circuit Judges.\\n\\n\\nTYMKOVICH, Chief Judge.\\n\\n\\n Enable Intrastate Transmission, LLC owns and operates a natural gas\\n\\npipeline that crosses Indian allotted land in Anadarko, Oklahoma. A twenty-year\\n\\neasement for the pipeline expired in 2000. Enable failed to renew the easement\\n\\nbut also failed to remove the pipeline. In response, roughly three-dozen\\n\\n\\n\\n -2-\\n\\findividual Native American Allottees—who hold equitable title in the allotted\\n\\nland—filed this lawsuit.\\n\\n The district court granted summary judgment to the Allottees, ruling on the\\n\\nbasis of stipulated facts that Enable was liable for trespass. The court then\\n\\nenjoined the trespass, ordering Enable to remove the pipeline. Enable appeals\\n\\nboth rulings, claiming several legal errors. 1\\n\\n We affirm in part, reverse in part, and remand for further proceedings. The\\n\\ndistrict court properly granted summary judgment to the Allottees but erred in\\n\\nissuing the permanent injunction. The availability of equitable relief in this case\\n\\ndepends on the relative weight of interests not yet considered below. We leave\\n\\nthose considerations for the district court to determine in the first instance.\\n\\n I. Background\\n\\n “After the formation of the United States, the [Indian] tribes became\\n\\n‘domestic dependent nations,’ subject to plenary control by Congress.” Puerto\\n\\nRico v. Sanchez Valle, 136 S. Ct. 1863, 1872 (2016) (quoting United States v.\\n\\nLara, 541 U.S. 193, 204 (2004)); see also Cty. of Oneida v. Oneida Indian\\n\\nNation, 470 U.S. 226, 234 (1985) (“With the adoption of the Constitution, Indian\\n\\n\\n\\n1\\n The Allottees have also filed a motion for partial dismissal of this appeal,\\nasserting that we lack jurisdiction over one of the interlocutory orders issued\\nbelow. The merits briefing makes clear, however, that Enable does not appeal the\\norder in question. We therefore DENY the motion as moot.\\n\\n -3-\\n\\frelations became the exclusive province of federal law.”). This “plenary\\n\\nauthority” includes “full power to legislate concerning . . . tribal property.”\\n\\nWinton v. Amos, 255 U.S. 373, 391 (1921); see also Ramah Navajo Sch. Bd., Inc.\\n\\nv. Bureau of Revenue, 458 U.S. 832, 837 (1982) (linking Congress’s “broad\\n\\n[regulatory] power . . . [over] tribal affairs” to “the Indian Commerce Clause” and\\n\\n“the semi-autonomous status of Indian tribes” (first citing U.S. Const. art. I, § 8,\\n\\ncl. 3; then citing White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142\\n\\n(1980))). See generally White Mountain, 448 U.S. at 141–45 (explaining the\\n\\nrelationship between federal, state, and tribal regulatory authority).\\n\\n Congress exercised that power during the “Allotment Era” of the late-\\n\\nnineteenth and early-twentieth centuries by “carv[ing] [Indian] reservations into\\n\\nallotments and assign[ing] the land parcels to tribal members.” Pub. Serv. Co. v.\\n\\nBarboan, 857 F.3d 1101, 1104 (10th Cir. 2017). See generally id. at 1104–06\\n\\n(detailing the history of the Allotment Era). This project aimed to promote Indian\\n\\nassimilation by encouraging private property ownership and agricultural pursuits.\\n\\nE.g., Upper Skagit Indian Tribe v. Lundgren, 138 S. Ct. 1649, 1652 (2018).\\n\\n But all did not go according to plan. “[M]any of the early allottees quickly\\n\\nlost their land through transactions that were unwise or even procured by fraud.”\\n\\nCty. of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502\\n\\nU.S. 251, 254 (1992). In response, Congress “restricted immediate alienation or\\n\\n\\n -4-\\n\\fencumbrance” in favor of a trust-based model. Id. Through the Dawes Act, ch.\\n\\n119, 24 Stat. 388 (1887), repealed by Indian Land Consolidation Act\\n\\nAmendments of 2000, Pub. L. No. 106-462, §§ 101–103, 114 Stat. 1991,\\n\\n1991–2006 (codified at 25 U.S.C. §§ 2201–2219), Congress empowered the\\n\\nPresident to allot reservation land in trust rather than granting immediate, fee\\n\\nsimple ownership, County of Yakima, 502 U.S. at 254. Under these trust\\n\\narrangements, the United States retained legal title of allotted parcels while\\n\\nIndian allottees received equitable title. See id. An allottee could secure a fee\\n\\nsimple land patent only upon dissolution of the trust, which the government would\\n\\nallow after a term of years or by special determination. Id. at 254–55.\\n\\n It was through this program that, in August of 1901, President William\\n\\nMcKinley allotted 160 acres of land in Anadarko, Oklahoma, to a Kiowa woman\\n\\nnamed Emaugobah. But Congress’s allotment project “came to an abrupt end . . .\\n\\nwith passage of the Indian Reorganization Act” in 1934. Id. at 255. Under that\\n\\nlegislation, “Congress halted further allotments and extended indefinitely the\\n\\nexisting periods of trust applicable to already allotted (but not yet fee-patented)\\n\\nIndian lands.” Id. As a result, Emaugobah never received a fee simple patent.\\n\\nAnd well over a century later, the federal government still holds roughly 136\\n\\nacres of Emaugobah’s tract in trust for the benefit of her tribe and thirty-some\\n\\nindividual Allottees.\\n\\n\\n -5-\\n\\f Meanwhile, Congress’s vacillation on Indian land policy left “a\\n\\ncheckerboard of tribal, individual Indian, and individual non-Indian land\\n\\ninterests” across Indian country. Barboan, 857 F.3d at 1105. This, in turn,\\n\\ncreated its own set of problems. As Congress hemmed and hawed over Indian\\n\\naffairs, the American people headed west and industrialized. The Great\\n\\nPlains—once passable only by foot, hoof, and wagon—slowly but surely sprouted\\n\\na network of train tracks, telegraph wires, and other conduits of modern\\n\\ncommerce. “[T]o help ensure that [such modern] necessities . . . could” span the\\n\\ncontinent “without encumbrance,” Congress soon enacted a series of\\n\\n“right-of-way statutes.” Id.\\n\\n As relevant here, these laws empowered the Secretary of the Interior to\\n\\napprove easements “for all purposes . . . over and across any lands . . . held in\\n\\ntrust by the United States for individual Indians or Indian tribes.” 25 U.S.C.\\n\\n§ 323. But the Secretary could not do so unilaterally. Instead, the Secretary\\n\\nneeded “the consent of the proper tribal officials” or, where applicable,\\n\\n“individual Indian owners.” Id. § 324. In the case of allotments shared among\\n\\nmultiple Indians, the law required consent of a “majority of the [equitable]\\n\\ninterests” to approve a right-of-way. Id.\\n\\n In 1980, acting under these provisions, the Secretary allowed conveyance of\\n\\na twenty-five-foot-wide pipeline easement over a strip of Emaugobah’s allotment.\\n\\n\\n -6-\\n\\fBy its terms, the easement would allow Producer’s Gas Company to “install . . .\\n\\nand thereafter use, operate, inspect, repair, maintain, . . . and remove a single\\n\\nburied [twenty-inch] natural gas pipeline” within a twenty-year period. App. 40.\\n\\nProducer’s Gas later conveyed both the easement and the pipeline to Enable.\\n\\n When the easement expired in November 2000, however, Enable’s pipeline\\n\\nremained buried in the ground. Enable eventually sought a new twenty-year\\n\\neasement by approaching the Allottees and applying for approval from the Bureau\\n\\nof Indian Affairs. But the company failed to secure approval for the new\\n\\neasement from a majority of the equitable interests. Accordingly, the Bureau\\n\\ncancelled Enable’s right-of-way application. Apparently undeterred, Enable\\n\\ncontinued to operate the pipeline.\\n\\n The Allottees eventually sued. Their complaint claimed Enable was\\n\\ncommitting a trespass and sought a court order compelling the pipeline’s removal.\\n\\nThe parties agreed on most of the relevant facts, so the Allottees moved for\\n\\npartial summary judgment on liability for trespass and injunctive relief. The\\n\\ndistrict court granted the motion. Enable now appeals.\\n\\n II. Analysis\\n\\n Enable raises two issues on appeal. First, it argues the district court erred\\n\\nin granting summary judgment to the Allottees on their trespass claims. Second,\\n\\nit contends the district court erred in issuing a permanent injunction to enforce the\\n\\n\\n -7-\\n\\fsummary judgment ruling. We affirm the district court’s entry of summary\\n\\njudgment. We reverse its entry of a permanent injunction, however, and remand\\n\\nfor the appropriate weighing of equities.\\n\\n A. Summary Judgment\\n\\n We review district court grants of summary judgment de novo. White v.\\n\\nYork Int’l Corp., 45 F.3d 357, 360 (10th Cir. 1995). In so doing, we ask the same\\n\\nquestion the district court asked: has discovery yielded a genuine dispute of\\n\\n“material fact” or is the movant “entitled to judgment” on a claim or issue without\\n\\nany need to weigh evidence? Fed. R. Civ. P. 56(a); see Anderson v. Liberty\\n\\nLobby, Inc., 477 U.S. 242, 249 (1986). A genuine dispute arises where the\\n\\navailable evidence would allow a rational jury to accept either party’s allegation\\n\\nof a particular fact. See Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir.\\n\\n2013). But only facts that “could have an effect on the outcome” of a claim\\n\\nqualify as “material.” Id. (quoting EEOC v. Horizon/CMS Healthcare Corp., 220\\n\\nF.3d 1184, 1190 (10th Cir. 2000)). We construe all evidence and draw all\\n\\ninferences in favor of the party opposing a summary judgment motion. See, e.g.,\\n\\nEagleMed LLC v. Cox, 868 F.3d 893, 899 (10th Cir. 2017).\\n\\n But it is the law, not the material facts, that complicates this case. When a\\n\\ndispute arises over possessory rights in Indian allotted land, federal law governs.\\n\\nSee Nahno-Lopez v. Houser, 625 F.3d 1279, 1282 (10th Cir. 2010); cf. Clearfield\\n\\n\\n -8-\\n\\fTr. Co. v. United States, 318 U.S. 363, 366 (1943) (“The rights and duties of the\\n\\nUnited States on commercial paper which it issues are governed by federal rather\\n\\nthan local law.”). And although no act of Congress expressly creates a right of\\n\\naction for trespass on Indian allotted land, the parties agree such a right exists.\\n\\nSee, Aplt. Br. at 16; Aple. Br. at 15. 2 They do, however, dispute the rules of\\n\\ndecision. Thus we must determine those rules as a matter of so-called “federal\\n\\ncommon law.” 3\\n\\n Because we lack a federal body of trespass law to protect the Allottees’\\n\\nfederal property interests, we must borrow state law to the extent it comports with\\n\\nfederal policy. See Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 98 (1991);\\n\\n\\n2\\n Nahno-Lopez also concerned an alleged trespass on Indian allotted land. See\\n625 F.3d at 1282. In that case, however, we affirmed summary judgment to the\\ndefendants due to a lack of evidence to prove an essential element. See id. at\\n1283. It is therefore unclear whether we have ever formally recognized a federal\\nclaim for trespass on an Indian allotment, or simply assumed such a claim’s\\nexistence. Cf., e.g., Gohier v. Enright, 186 F.3d 1216, 1220–22 (10th Cir. 1999)\\n(disposing of a claim under federal law without deciding whether to recognize\\nthat claim).\\n3\\n Of course, “[t]here is no federal general common law.” Erie R.R. Co. v.\\nTompkins, 304 U.S. 64, 78 (1938) (emphasis added). Nevertheless, the federal\\ncourts have—confusingly—adopted the label “federal common law” to describe a\\ncertain variety of statutory interpretation. See generally Martha A. Field, Sources\\nof Law: The Scope of Federal Common Law, 99 Harv. L. Rev. 881, 890–97 (1986)\\n(explaining the meaning of the term). Within this realm, federal courts drift far\\nfrom codified text and interpret congressional silence to include rules of law\\nprotecting “uniquely federal interests.” Boyle v. United Techs. Corp., 487 U.S.\\n500, 504 (1988) (quoting Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S.\\n630, 640 (1981)).\\n\\n -9-\\n\\fCalifornia ex rel. State Lands Comm’n v. United States, 457 U.S. 273, 283\\n\\n(1982); United States v. Kimbell Foods, Inc., 440 U.S. 715, 728 (1979). The State\\n\\nof Oklahoma recognizes a right of action in trespass where one person “actual[ly]\\n\\nphysical[ly] inva[des] . . . the real estate of another without the permission of the\\n\\nperson lawfully entitled to possession.” Williamson v. Fowler Toyota, Inc., 956\\n\\nP.2d 858, 862 (Okla. 1998). In other words, a trespass occurs when “one . . .\\n\\nenters upon the property of another without any right, lawful authority, or express\\n\\nor implied invitation, permission, or license.” Id. The entry must not be “in the\\n\\nperformance of any duty to the owner or person in charge or on any business of\\n\\nsuch person.” Id. Instead, a trespasser comes or remains on land “merely for his\\n\\nown purposes, pleasure, . . . convenience, or out of curiosity.” Id.\\n\\n Our reading of Oklahoma law thus yields three elements constituting the\\n\\nAllottees’ federal trespass claims. First, the Allottees must prove an entitlement\\n\\nto possession of the allotment. Second, they must prove Enable physically entered\\n\\nor remained on the allotment. Finally, they must prove Enable lacked a legal\\n\\nright—express or implied—to enter or remain. The stipulated facts already\\n\\ndescribed definitively prove the first two elements. Enable takes issue, however,\\n\\nwith the entry of summary judgment on the third.\\n\\n\\n\\n\\n -10-\\n\\f 1. Consent as a Defense to Trespass\\n\\n Enable contends it has produced evidence of consent sufficient to prove a\\n\\nlegal right to maintain the pipeline despite the easement’s expiration. See Aplt.\\n\\nBr. 20–23. Moreover, Enable argues the Allottees’ failure to address this\\n\\nevidence in their opening summary judgment brief below should have rendered\\n\\nthe motion insufficient at the outset. See id. at 23–25.\\n\\n We first address the role of consent in this area of law. In Nahno-Lopez we\\n\\nconsidered a similar trespass action regarding Indian allotted land. See 625 F.3d\\n\\n1279. Several individual Comanche had agreed to lease their allotted land to the\\n\\nFort Sill Apache Tribe for development of a casino parking facility. A\\n\\ncontroversy then arose among the allottees, the Tribe, and the Bureau of Indian\\n\\nAffairs regarding the lease’s validity. The allottees sued the Tribe, claiming\\n\\ntrespass. The district court granted summary judgment to the Tribe.\\n\\n We affirmed. We reasoned that the Comanche allottees had not offered\\n\\nrecord evidence sufficient to survive summary judgment. We specifically noted\\n\\nthe Comanche allottees’ failure to controvert the Tribe’s evidence of “consent” to\\n\\nthe alleged trespass—namely, the lease document and acceptance of rent\\n\\npayments. See id. at 1280, 1284. Because, in our words, “consent forms a\\n\\ncomplete defense to trespass” under the incorporated Oklahoma law, we upheld\\n\\nthe summary judgment order. Id. at 1284.\\n\\n\\n -11-\\n\\f Enable relies on this language in arguing it has a sufficient fact question\\n\\nregarding consent. In 2004, Enable obtained written consent forms from five of\\n\\nthe thirty-seven individual Allottees in this case. The forms show these five\\n\\nAllottees’ willingness to grant a new right-of-way for the pipeline in exchange for\\n\\ncash payments. 4 Despite the fact that these Allottees hold less than ten percent of\\n\\nthe interests in equitable title, Enable contends their consent creates a triable\\n\\nfactual dispute precluding summary judgment under Nahno-Lopez. See Aplt. Br.\\n\\nat 21–23. If consent is “a complete defense to trespass,” Enable argues, then\\n\\nthese forms would allow a reasonable jury to rule against trespass liability.\\n\\n This argument confuses the law. Admittedly, our concise presentation of\\n\\n“consent” as a “complete defense to trespass” in Nahno-Lopez somewhat\\n\\noversimplified the rule. To be sure, the rightful possessor of real property cannot\\n\\nhold his licensees liable for trespass under Oklahoma law. But this is\\n\\nbecause—as we have just explained—the defendant’s lack of a right to enter is an\\n\\nelement of the claim. Accordingly, evidence of a plaintiff’s consent to a\\n\\ndefendant’s entry on the land will defeat liability in those cases where the\\n\\nplaintiff’s consent itself creates a right to enter or remain. In such cases, the\\n\\nclaim will fail for lack of proof on an essential element.\\n\\n\\n4\\n The Allottees’ have contested the continued validity of these fourteen-year-old\\nforms. See Aple. Br. at 32–33. We assume their validity for the sake of\\nargument.\\n\\n -12-\\n\\f When it comes to maintaining a pipeline over Indian allotted land, however,\\n\\nCongress has dictated the prerequisites of a right to enter by statute. Enable thus\\n\\nhas no legal right to keep a structure on the Allottees’ land unless and until it\\n\\nsecures a right-of-way for that purpose from the Secretary of the Interior. See 25\\n\\nU.S.C. § 323. The Secretary must, in turn, have the approval of the relevant\\n\\nIndian stakeholders. See id. § 324.\\n\\n The statute notwithstanding, Enable argues “[a] single owner of a tenancy\\n\\nin common may enter into a lease for the entire co-tenancy property without any\\n\\nother’s consent.” Aplt. Br. at 22 (emphasis added). Enable gives us no reason to\\n\\nequate the Allottees’ interest in the land with a traditional tenancy in common.\\n\\nBut even if it were, the authorities Enable identifies do not support this bold\\n\\nassertion. See United States v. Craft, 535 U.S. 274, 280 (2002) (explaining, in\\n\\ndicta, that under traditional English common law, cotenants “may each\\n\\nunilaterally alienate [or encumber] their shares” but also have “the right to . . .\\n\\nexclude third parties from” the property (emphasis added)); Anderson v. Dyco\\n\\nPetroleum Corp., 782 P.2d 1367, 1371–72 & n.8 (Okla. 1989) (holding that\\n\\ncotenants in the “working interest in [a] natural gas well” may each “market\\n\\nproduction from the well and . . . [sell] gas to a purchaser . . . without consent of\\n\\nother cotenants,” id. at 1371). More to the point, those authorities fall well short\\n\\nof holding that one cotenant has no right of action for trespass under Oklahoma\\n\\n\\n -13-\\n\\flaw when another cotenant—much less a small minority of cotenancy interests—\\n\\nhas agreed to a right-of-way easement. And though we have found no Oklahoma\\n\\nauthority directly on point, other jurisdictions have adopted a directly opposite\\n\\nview. See, e.g., Burnham v. Balt. Gas & Elec. Co., 144 A.2d 80, 87 (Md. 1958)\\n\\n(“The authorities appear to be uniform in holding that a cotenant cannot by\\n\\nhimself grant an easement that will bind his cotenants.”).\\n\\n Moreover, even if Oklahoma would say that this evidence could defeat any\\n\\ntrespass claim, we would not incorporate such a rule into the Allottees’ federal\\n\\nright of action. As we explained above, federal courts should only incorporate\\n\\nstate rules of decision into federal claims to the extent those rules are consistent\\n\\nwith federal law and policy. See, e.g., Kamen, 500 U.S. at 98. Needless to say,\\n\\nsecuring the approval of a majority of beneficial interests plus the government\\n\\npresents a greater challenge than getting the consent of just a few minority\\n\\nstakeholders. Thus, if the consent of a minority of interests in equitable title\\n\\ncould defeat any federal claim for trespass on an Indian allotment, there would be\\n\\nno point to fulfilling the more stringent requirements of securing a right-of-way\\n\\nunder federal statute. Adopting Enable’s view would therefore frustrate federal\\n\\nIndian land policy, effectively robbing Indian allottees and the government of\\n\\nmeaningful control over alienation. We thus reject Enable’s theory of consent.\\n\\n\\n\\n\\n -14-\\n\\f In light of this conclusion, Enable’s proffered evidence plainly does not\\n\\nwarrant reversal of the district court’s summary judgment ruling. The undisputed\\n\\nfacts—expiration of the easement, specifically—show that Enable lacks a legal\\n\\nright to keep the pipeline in the ground. The consent forms would not allow a\\n\\nreasonable jury to find otherwise.\\n\\n The Allottees’ briefing below did not bar the district court from reaching\\n\\nthis conclusion either. To be sure, the Allottees had to show liability was\\n\\n“appropriate as a matter of law” to support summary judgment. Trainor v. Apollo\\n\\nMetal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). And they did not\\n\\nmention the consent evidence in their initial motion. But the consent evidence\\n\\nwould not have contributed to the initial showing of liability. Thus, because the\\n\\nAllottees raised the stipulated facts that the easement had expired and not been\\n\\nrenewed, the onus fell to Enable to put its right to entry at issue. See Anderson v.\\n\\nDep’t of Heath & Human Servs., 907 F.2d 936, 947 (10th Cir. 1990).\\n\\n Nor did the district court exceed its discretion by allowing the Allottees to\\n\\nfile a reply brief addressing consent after Enable raised the issue. See Beaird v.\\n\\nSeagate Tech., Inc., 145 F.3d 1159, 1164 (10th Cir. 1998) (applying the abuse of\\n\\ndiscretion standard). Enable had a full opportunity to brief the issue—indeed, it\\n\\nraised the issue itself. More importantly, Enable gives no indication that it\\n\\nsought and was denied an opportunity to file a surreply. Thus, the court below\\n\\n\\n -15-\\n\\fhad every right to reach and resolve this issue. See Jencks v. Modern Woodmen of\\n\\nAm., 479 F.3d 1261, 1268–69 (10th Cir. 2007).\\n\\n 2. Demand for Removal\\n\\n Enable also argues that no duty to remove the pipeline ever arose—\\n\\nexpiration of the easement notwithstanding—because the Allottees never\\n\\ndemanded that Enable remove the pipeline.\\n\\n We note first that Enable failed to raise this argument below. A litigant\\n\\nmust preserve an issue for appellate review by pressing it in the trial court. See,\\n\\ne.g., Carney v. Okla. Dep’t of Pub. Safety, 875 F.3d 1347, 1351 (10th Cir. 2017).\\n\\nAnd because Enable has not raised it under the plain error standard here, we have\\n\\nno obligation to address it. See Richison v. Ernest Grp., Inc., 634 F.3d 1123,\\n\\n1130–31 (10th Cir. 2011).\\n\\n Recognizing this problem, Enable has attempted to shift blame to the\\n\\nAllottees. According to Enable, the Allottees could only secure summary\\n\\njudgment if they briefed all elements of their trespass claim—including demand\\n\\nfor removal. See Aplt. Br. at 18–20; Reply Br. at 2–4. But our adversarial system\\n\\ndoes not work that way. To be sure, a party seeking summary judgment must\\n\\nshow the law and available evidence compel the requested outcome. See Fed. R.\\n\\nCiv. P. 56; Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); Neal v. Lewis,\\n\\n414 F.3d 1244, 1248 (10th Cir. 2005); Reed v. Bennett, 312 F.3d 1190, 1194 (10th\\n\\n\\n -16-\\n\\fCir. 2002). And to do so, he must necessarily identify governing legal principles.\\n\\nBut even an erroneous or incomplete view of the law can support summary\\n\\njudgment against a party that fails to contest it. Indeed, our courts act only as\\n\\n“neutral arbiter[s] of matters the parties present.” Greenlaw v. United States, 554\\n\\nU.S. 237, 243, 128 (2008). Thus, the movant’s burden of production at the\\n\\nsummary judgment stage does not abrogate the nonmovant’s obligation to contest\\n\\nmatters of law. If it did, district court review of summary judgment motions\\n\\nwould become a waste of time in many instances. See Wright v. Experian Info.\\n\\nSols., Inc., 805 F.3d 1232, 1244 n.6 (10th Cir. 2015).\\n\\n But Enable’s forfeiture does not prevent us from definitively rejecting its\\n\\ndemand argument on the merits. See, e.g., United States v. Jarvis, 499 F.3d 1196,\\n\\n1201 (10th Cir. 2007); see also Champagne Metals v. Ken-Mac Metals, Inc., 458\\n\\nF.3d 1073, 1088 (10th Cir. 2006) (declaring our court’s discretion to affirm on\\n\\nany sufficient ground the parties have had an opportunity to address). And in the\\n\\ninterest of clarifying the law, we think it appropriate to do so. Cf. Jarvis, 499\\n\\nF.3d at 1202.\\n\\n Again, we incorporate Oklahoma law into this federal claim so long as it\\n\\ndoes not frustrate federal policy. See, e.g., Kamen, 500 U.S. at 98. And we begin\\n\\nby noting the absence of any Oklahoma case establishing a demand requirement.\\n\\nSee Fairlawn Cemetery Ass’n v. First Presbyterian Church, U.S.A., 496 P.2d\\n\\n\\n -17-\\n\\f1185, 1187 (Okla. 1972) (specifically considering a trespass by means of a\\n\\npermanent physical invasion of dirt fill); Russell v. Williams, 964 P.2d 231 (Okla.\\n\\nCiv. App. 1998) (considering trespass by a portion of a modular home); see also\\n\\nFrank v. Mayberry, 985 P.2d 773, 775–76 (Okla. 1999) (often cited as explaining\\n\\nOklahoma’s law of trespass); Williamson, 956 P.2d at 862 (same).\\n\\n Moreover, even assuming—as Enable urges—that Oklahoma follows the\\n\\nRestatement (Second) of Torts, see Aplt. Br. at 17 & n.6; but cf. Frank, 985 P.2d\\n\\nat 776 (noting that the Oklahoma Supreme Court has “quoted [the Second\\n\\nRestatement] with approval,” rather than adopting it), the argument still fails.\\n\\nThe Restatement provides that “the continued presence on the land of a structure\\n\\n. . . which the actor . . . has placed” there “with the consent of” the lawful\\n\\npossessor constitutes a trespass “if the actor fails to remove it after the consent\\n\\nhas been effectively terminated.” Restatement (Second) of Torts § 160 (Am. Law\\n\\nInst. 1977) (emphasis added). The comments clarify that “[i]f a structure . . . is\\n\\nplaced on the land with the possessor’s consent conditioned upon the actor’s\\n\\nsubsequently removing it, the termination of consent creates a duty to remove it.”\\n\\nId. cmt. d. And, unsurprisingly, “the lapse of any specified period of time by\\n\\nwhich the consent is restricted” terminates consent. Id. § 171(a).\\n\\n According to these rules, the easement’s expiration created a duty to\\n\\nremove the pipeline. Permission to lay and maintain the pipeline came\\n\\n\\n -18-\\n\\fhand-in-hand with an obligation to remove it. See App. 40 (granting the easement\\n\\nto “install . . . and remove” the pipeline within a term of twenty years); cf. 25\\n\\nC.F.R. § 161.5(I) (1980) (requiring right-of-way applicants to expressly agree to\\n\\nrestore the land to its original condition). Indeed, there would have been no sense\\n\\nin limiting the easement term to twenty years otherwise. The Restatement would\\n\\ntherefore not impose a separate obligation to demand removal on these facts. 5\\n\\n To be sure, had the Allottees refused to allow Enable to remove the\\n\\npipeline, the Restatement might have forbidden liability for trespass. See\\n\\nRestatement (Second) of Torts §§ 160 cmt. m, 161 cmt. d. But Enable gives us no\\n\\nreason to believe the Allottees have ever prevented removal of the pipeline.\\n\\nInstead, Enable espouses the view that it would have incurred trespass liability for\\n\\nattempting to remove the pipeline unless and until the Allottees made a removal\\n\\ndemand. This argument mischaracterizes the right-of-way grant and misstates\\n\\nOklahoma law. Both allowed Enable to enter the land to remove the pipeline at\\n\\nleast within the easement term, if not beyond it. See App. 40; Williamson, 956\\n\\nP.2d at 862.\\n\\n Ignoring these issues, Enable focuses on rules pertaining to structures\\n\\n“tortiously placed” on land and subsequently transferred to new owners. See\\n\\n\\n\\n5\\n For that matter, the complaint filed in district court acted as a demand for\\nremoval.\\n\\n -19-\\n\\fAplt. Br. at 18 (discussing Restatement (Second) of Torts § 161). Of course,\\n\\nProducer’s Gas—Enable’s predecessor—did not tortiously place the pipeline on\\n\\nthe land; it constructed the pipeline with permission. And the fact that Enable\\n\\nkept the pipeline on the land without permission does not render the initial\\n\\nplacement tortious. Moreover, the only transfer of the pipeline occurred during\\n\\nthe easement term, at which point the parties agree the pipeline’s presence was\\n\\nstill lawful. Finally, even assuming this case had involved a transfer after\\n\\nexpiration of the easement, the Restatement makes clear that notice of a duty to\\n\\nremove—for instance, through the terms of an easement contract—binds the\\n\\ntransferee. See Restatement (Second) of Torts § 161(2).\\n\\n Finally, Enable errs by relying on the Ninth Circuit’s decision in United\\n\\nStates v. Milner, 583 F.3d 1174 (9th Cir. 2009), to bolster its position. In Milner,\\n\\nthe Ninth Circuit considered an alleged federal trespass by anti-erosion structures\\n\\noriginally placed on privately owned tidal uplands in Washington State. The\\n\\nboundary between the uplands and adjacent Indian tidelands had shifted with the\\n\\ngradual change of the mean high water mark over the course of several years.\\n\\nEventually, the boundary line shifted so far that the stationary anti-erosion\\n\\nstructures began encroaching on the tribal tideland. In defense against a trespass\\n\\nclaim, the upland owners argued they lacked the intent necessary to commit a\\n\\ntrespass. The Ninth Circuit rejected this argument, reasoning that intent followed\\n\\n\\n -20-\\n\\frefusal to remove the structures despite notice of a duty to remove. That notice,\\n\\nsaid the court, followed the United States’ demand for removal as legal title\\n\\nholder. See id. at 1190–91.\\n\\n Even if we assumed the legal principles the Ninth Circuit applied in Milner\\n\\nhad bearing on this case, 6 they would not support Enable’s argument for a demand\\n\\nelement. As we have explained, Enable acquired the pipeline already knowing\\n\\nthe right-of-way would eventually expire. It therefore cannot—and indeed does\\n\\nnot—claim it lacked notice of its duty to remove or intent to maintain the\\n\\ntrespass.\\n\\n We thus reject Enable’s contention that the Allottees had to demand\\n\\nremoval of the pipeline for trespass liability to arise.\\n\\n ***\\n\\n\\n\\n\\n6\\n The Milner court applied the Restatement (Second) of Torts under the\\nsomewhat ambiguous reasoning that both federal precedent and borrowed\\nprecedent from the State of Washington supported that application. See United\\nStates v. Milner, 583 F.3d 1174, 1182–83 & n.6 (9th Cir. 2009). The Restatement\\nclassifies trespass traditionally as an intentional tort, see Restatement (Second) of\\nTorts § 158, with “intent” meaning a “desire[] to cause consequences of” the act\\nin question “or . . . belie[f] that the consequences are substantially certain to\\nresult,” id. § 8A. It is worth noting, however, that the Oklahoma courts have yet\\nto develop a jurisprudence of intent with regard to real property trespass.\\nNevertheless, because Enable has never made an issue of it, the place of intent in\\nOklahoma tort law and, consequently, federal trespass law, does not bear on our\\nanalysis.\\n\\n -21-\\n\\f In sum, Enable’s arguments against summary judgment fail under the\\n\\nincorporated trespass law of Oklahoma. And Enable has not argued for any\\n\\nconflict between that law, as we understand it, and federal policy regarding Indian\\n\\nallotted land. We therefore affirm the district court’s grant of summary judgment.\\n\\n B. Permanent Injunction\\n\\n The Allottees’ success on the merits notwithstanding, Enable argues the\\n\\ndistrict court applied the wrong legal standard in determining whether to issue a\\n\\npermanent injunction. According to Enable, the district court incorporated a\\n\\nsimplified injunction rule from Oklahoma law when it should have adhered to\\n\\nbasic tenants of federal equity jurisprudence. Aplt. Br. at 25–28. 7\\n\\n We agree. By failing to apply the federal courts’ traditional equity\\n\\njurisprudence to its remedy analysis, the court below committed an error of law\\n\\nand thus abused its equitable discretion. Accordingly, we must reverse the\\n\\ninjunction order and remand for a full weighing of the equities.\\n\\n Federal district courts have the power to order injunctive relief when equity\\n\\nso requires. See Signature Props. Int’l Ltd. P’ship v. City of Edmond, 310 F.3d\\n\\n1258, 1268 (10th Cir. 2002). We review a district court’s exercise of that power\\n\\n\\n\\n7\\n The Allottees contend Enable forfeited this argument by failing to raise it\\nbelow. See Aple. Br. at 34–35. Our review of the briefing below, however,\\nreveals that Enable did not acquiesce to the Allottees’ proposed automatic-\\ninjunction rule and instead argued for the typical four-factor analysis.\\n\\n -22-\\n\\ffor abuse of discretion only. See, e.g., id. As always, however, a district court\\n\\nabuses its discretion when it “bases its decision on an erroneous conclusion of\\n\\nlaw.” Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1227 (10th Cir. 2011)\\n\\n(quoting Wilderness Workshop v. U.S. Bureau of Land Mgmt., 531 F.3d 1220,\\n\\n1224 (10th Cir. 2008)).\\n\\n In this case, the district court relied primarily on Oklahoma law—with\\n\\nsupplemental authority from other federal courts—to conclude that “equity will\\n\\nrestrain [a continuing] trespass.” App. 268 (quoting Fairlawn Cemetery, 496 P.2d\\n\\nat 1187). 8 As a result, it did not apply the usual four-factor test guiding federal\\n\\ncourts’ grant of permanent injunctive relief. See, e.g., eBay Inc. v.\\n\\nMercExchange, L. L. C., 547 U.S. 388, 391 (2006); Kitchen v. Herbert, 755 F.3d\\n\\n1193, 1208 (10th Cir. 2014). Though it observed “some courts have declined to\\n\\nenter an injunction when the trespass was unintentional and when the landowner”\\n\\ndelays objection, it did not think such issues at play in this case. App. 269. Thus,\\n\\n\\n\\n\\n8\\n Where a refusal to remove a permanent structure effects the invasion of real\\nproperty, it constitutes a “continuing trespass” under Oklahoma law. Fairlawn\\nCemetery, 496 P.2d at 1187. “Continuing trespass” is not a distinct legal wrong.\\nRather, the ongoing, unabating nature of certain trespasses continuously gives rise\\nto causes of action that the victim can sue on, and eventually can support\\nequitable relief. See Hughes v. Harden, 151 P.2d 425, 427 (Okla. 1944); see also\\nBradley v. Renfrow, 84 P.2d 430, 431 (Okla. 1938) (describing an allegation of\\ncontinuing trespass as supporting pursuit of equitable relief).\\n\\n -23-\\n\\fwith no further weighing of the equities, the court ordered Enable to remove the\\n\\npipeline.\\n\\n Generally, federal courts adopt state law even when the dispute is\\n\\n“governed exclusively by federal [common] law.” See United States v. Turley,\\n\\n878 F.3d 953, 957 (10th Cir. 2017). “Indeed, there is a ‘presumption that state\\n\\nlaw should be incorporated into federal common law.’” Id. (citing Kamen v.\\n\\nKemper Fin. Servs., Inc., 500 U.S. 90, 98 (1991)). This is partly because courts\\n\\nare hesitant, and for good reason, to create federal common law rules that are\\n\\n“wholly the product of a federal court’s own devising.” See Kamen, 500 U.S. at\\n\\n98; United States v. Yazell, 382 U.S. 341, 353 (1966) (declining to “invent” a\\n\\nfederal common law rule and “impose it upon the States”). Such policy, even\\n\\nwhen applied to cases arising under federal common law rather than diversity\\n\\njurisdiction, supports “the twin aims of the Erie rule: discouragement of forum-\\n\\nshopping and avoidance of inequitable administration of the laws.” Hanna v.\\n\\nPlumer, 380 U.S. 460, 468 (1965).\\n\\n But federal courts do not mechanically apply state law in every\\n\\ncircumstance. “Whether to adopt state law or to fashion a nationwide federal rule\\n\\nis a matter of judicial policy ‘dependent upon a variety of considerations.’”\\n\\nUnited States v. Kimbell Foods, Inc., 440 U.S. 715, 728 (1979) (citation omitted).\\n\\nAnd to guide this judicial policymaking, the Supreme Court has indicated that\\n\\n\\n -24-\\n\\ffederal courts should consider (1) “whether application of state law would\\n\\nfrustrate specific” federal interests, (2) whether there is a “need for a nationally\\n\\nuniform body of law,” and (3) other considerations such as whether “application\\n\\nof a federal rule would disrupt commercial relationships predicated on state law.”\\n\\nId. at 728–29; see also Kamen, 500 U.S. at 98. The considerations in this case\\n\\nlead us to conclude that the district court erred in applying Oklahoma rather than\\n\\nfederal remedial law.\\n\\n The district court erred because the circumstances presented here reveal “a\\n\\ndistinct need for nationwide legal standards.” Kamen, 500 U.S. at 98. As already\\n\\nexplained, Congress provided a way for the Secretary of the Interior to approve\\n\\neasements “over and across any lands . . . held in trust by the United States for\\n\\nindividual Indians or Indian tribes.” 25 U.S.C. § 323. This right-of-way statute\\n\\nwas “to help ensure that necessities such as telegraph lines and roads could\\n\\ncontinue without encumbrance.” Pub. Serv. Co. of New Mexico v. Barboan, 857\\n\\nF.3d 1101, 1105 (10th Cir. 2017). While this does not rise to the level of creating\\n\\na federal interest that federal common law should manage, the nationwide\\n\\napplication of this right-of-way statute suggests a need for a uniform federal\\n\\nstandard.\\n\\n This uniform standard is necessary because the Secretary has undoubtedly\\n\\napproved easements over and across Indian land in multiple states. And since\\n\\n\\n -25-\\n\\fmany of these easements are likely for a limited duration, these easements—for\\n\\npipelines, telecommunication lines, and roads—like the easement at issue here,\\n\\nmay fail to receive consent to renew by a “majority of the [equitable] interests”\\n\\nand may therefore be subject to an order of removal. See id. § 324. This prospect\\n\\nshows the distinct need for easement holders to be subject to the same standard\\n\\nfor when an equitable remedy is required and when a legal remedy is\\n\\nsufficient—regardless of where the easement is located. Otherwise, an easement\\n\\nholder in Oklahoma and one in Kansas could be subject to differing permanent\\n\\ninjunction standards despite both receiving an easement from the Secretary of the\\n\\nInterior pursuant to the same federal program.\\n\\n We therefore conclude that the district court erred in failing to apply the\\n\\nfederal permanent-injunction standard even though it properly applied Oklahoma\\n\\ntrespass law. This is because our jurisprudence distinguishes between matters of\\n\\nright and matters of remedy. The Supreme Court has concluded that “State law\\n\\ncannot define the remedies which a federal court must give” and that “a federal\\n\\ncourt may afford an equitable remedy for a substantive right recognized by a State\\n\\neven though a state court cannot give it.” Guaranty Trust Co. of N.Y. v. York, 326\\n\\nU.S. 99, 105 (1945). Thus, the practice of borrowing state rules of decision does\\n\\nnot apply with equal force to determining appropriate remedies, especially\\n\\nequitable remedies, as it does to defining actionable rights.\\n\\n\\n -26-\\n\\f Moreover, applying the federal permanent-injunction standard differs\\n\\nsignificantly from applying the federal common law of trespass. As explained,\\n\\nfederal courts lack a body of federal trespass law to protect the Allottees’ federal\\n\\nproperty interests. So applying federal trespass law would require our court to\\n\\nconstruct rules entirely of this court’s creation. We accordingly borrow a body of\\n\\nwell-developed state law to the extent it does not conflict with federal policy.\\n\\nThese same considerations are not present when seeking to apply federal equitable\\n\\nremedies, however. Applying federal remedial law does not require this court to\\n\\ncreate federal common law or even to “fill the interstices of federal remedial\\n\\nschemes” with the court’s own rules. See Kamen, 500 U.S. at 98 (declining to\\n\\nfashion federal rules to fill gaps in federal statutory remedial scheme); Kimbell\\n\\nFoods, 440 U.S. at 728 (same).\\n\\n This is because the federal judiciary already has a well-developed body of\\n\\nlaw regarding equitable remedies to guide judicial discretion. The Supreme Court\\n\\nhas repeatedly weighed in on the standard federal courts apply when granting or\\n\\ndenying a permanent injunction. See, e.g., eBay Inc. v. MercExchange, L.L.C.,\\n\\n547 U.S 388, 391 (2006); Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531,\\n\\n541–42 (1987); Weinberger v. Romero-Barcelo, 456 U.S. 305, (1982). In each\\n\\ncase the Supreme Court set out the proper standard for granting a permanent\\n\\ninjunction and chastised the circuit court for granting equitable relief based solely\\n\\n\\n -27-\\n\\fon success on the merits. See Weinberger, 456 U.S. at 311–312 (“It goes without\\n\\nsaying that an injunction is an equitable remedy [that] . . . ‘is not a remedy which\\n\\nissues as of course.’”) (citation omitted). We may therefore apply a well-\\n\\ndeveloped federal common law standard for issuing a permanent injunction that\\n\\nwill fulfill the “distinct need for nationwide legal standards” called for in this\\n\\ncase. Kamen, 500 U.S. at 98.\\n\\n Thus, a federal district court’s decision to permanently enjoin a continuing\\n\\ntrespass on allotted land should take into account (1) whether an injunction is\\n\\nnecessary to prevent “irreparable harm,” (2) whether “the threatened injury\\n\\noutweighs the harm that the injunction may cause” to the enjoined party, and (3)\\n\\nwhether the injunction would “adversely affect the public interest.” Kitchen v.\\n\\nHerbert, 755 F.3d 1193, 1208 (10th Cir. 2014) (quoting Sw. Stainless, LP v.\\n\\nSappington, 582 F.3d 1176, 1191 (10th Cir. 2009)). 9 Accordingly, by ordering\\n\\nEnable to remove the pipeline on the basis of liability alone, the district court\\n\\nlegally erred and thus abused its discretion.\\n\\n The Allottees’ attempts to escape this conclusion do not persuade us. First,\\n\\nthey argue the district court did not, in fact, apply a simplified rule. Instead, they\\n\\n\\n\\n9\\n We acknowledge that our circuit’s articulation of the rule differs slightly from\\nthat of the Supreme Court in eBay. Compare Kitchen, 755 F.3d at 1208, with\\neBay, 547 U.S. at 393. But the subtle differences are not at issue, and we think\\nthe two articulations capture the same considerations in any event.\\n\\n -28-\\n\\fclaim the court merely applied the usual rule to simplified facts. See Aple. Br.\\n\\n35–38. But we see little support for this reading. The court below made no\\n\\nmention of the appropriate equitable considerations. Indeed, it went to great\\n\\nlengths to justify its analysis as legally, rather than just factually, appropriate.\\n\\n Second, the Allottees invite us to affirm the district court even if it applied\\n\\nincorrect law, claiming the record clearly warrants relief regardless. See Aple.\\n\\nBr. at 38–41. But though—as we have already noted—we may generally affirm a\\n\\ndistrict court order on any sufficient grounds the parties have had an opportunity\\n\\nto brief, see Champagne Metals, 458 F.3d at 1088, we resist that invitation. The\\n\\ndiscretion to issue a permanent injunction in this case rests with the district court,\\n\\nnot us. Cf., e.g., Bailey v. State Farm Fire & Cas. Co., 414 F.3d 1187, 1191\\n\\n(10th Cir. 2005). And just because we think the district court could have issued a\\n\\npermanent injunction under the proper test does not mean we can ignore an error\\n\\nof law and resolve the issue on appeal. “Injunctive relief is, by its very nature,\\n\\nfact-sensitive and case-specific.” New Comm Wireless Servs., Inc. v. SprintCom,\\n\\nInc., 287 F.3d 1, 13 (1st Cir. 2002). Thus our court should generally refrain from\\n\\n“uphold[ing] a preliminary injunction on a ground that was not fully addressed”\\n\\nbelow. Id.\\n\\n Moreover, if we did endeavor to balance the equities ourselves, we would\\n\\nnot get very far. As the above makes clear, the sheer right to exclude simply\\n\\n\\n -29-\\n\\fcannot begin and end the equitable analysis. Cf. eBay, 547 U.S. at 392–93. And\\n\\nthe Allottees do not explain how the pipeline’s presence works “irreparable harm”\\n\\notherwise. Kitchen, 755 F.3d at 1208 (quoting Sappington, 582 F.3d at 1191).\\n\\nMore importantly, without further evidence—which the Allottees have never\\n\\nproffered—we have no way of knowing the relative costs and benefits of Enable\\n\\nremoving the pipeline, either as they pertain to these parties or the public at large.\\n\\nTo the extent the Allottees have addressed these concerns, their arguments have\\n\\noffered legal analysis in lieu of pertinent facts. See App. 120–23; Aple. Br. at\\n\\n38–41. In short, we will not assume the equities support injunctive relief in this\\n\\ncase, or whether the district court would in fact award such relief under governing\\n\\nlaw.\\n\\n In sum, we must remand the decision to the district court to weigh the\\n\\nequities in the first instance. 10\\n\\n III. Conclusion\\n\\n For the reasons stated above, we AFFIRM the district court’s grant of\\n\\nsummary judgment to the Allottees, REVERSE the entry of the permanent\\n\\ninjunction, and REMAND for further proceedings.\\n\\n\\n\\n\\n10\\n As a result, we do not reach Enable’s challenge to the district court’s\\ncompliance with Rule 52 of the Federal Rules of Civil Procedure. See Aplt. Br. at\\n28–30.\\n\\n -30-\\n\\f17-6088, Davilla v. Enable Midstream Partners\\nHARTZ, Circuit Judge, concurrence and partial dissent:\\n Except in one respect, I am pleased to join Chief Judge Tymkovich’s opinion.\\n\\nWhere I differ from the panel opinion is that I would apply the state law of Oklahoma,\\n\\nrather than federal law, to determine the remedy for Enable’s trespass. Because the panel\\n\\nopinion covers the ground so well, my discussion can be relatively brief.\\n\\n The dispute in this case concerns about 1300 feet of natural-gas pipeline that is\\n\\npart of a 100-mile pipeline between Canute and Cox City, Oklahoma, which in turn is\\n\\npart of a broader 2200-mile pipeline system within Oklahoma. Plaintiffs’ claim is that\\n\\nthis quarter-mile pipeline segment trespasses property held in trust for them by the United\\n\\nStates. Because of the interest of the federal government, federal law governs. But there\\n\\nis no applicable federal trespass statute, so we decide this case as a matter of federal\\n\\ncommon law. As a general rule, federal common law regarding interests in real property\\n\\nadopts the law of the state where the property is located. See United States v. Turley, 878\\n\\nF.3d 953, 956–57 (10th Cir. 2017). Transactions can be handled more expeditiously and\\n\\nwith greater confidence when the government’s counterparty knows it can rely on the\\n\\nlocal law with which it (or its attorney) is familiar.\\n\\n The dispute before us, however, does require some consideration of federal\\n\\nstatutory law. Easements for rights-of-way over what can be described, roughly\\n\\nspeaking, as Indian lands must comply with 25 U.S.C. §§ 323–28, which set forth how\\n\\nconsent to a right-of-way must be obtained, ordinarily through approval of the majority\\n\\nownership interest of the known property owners (or tribal officials, if the land is tribal\\n\\fland), see id. at § 324. The easement for the pipeline in this case explicitly cites to those\\n\\nstatutory provisions. Much of the panel opinion, with which I fully agree, explains why\\n\\nwe believe that such consent had lapsed for the pertinent portion of Enable’s easement.\\n\\n But consent is only one element of a trespass claim. For the other elements,\\n\\nOklahoma law governs. That choice of law makes particularly good sense here. The\\n\\nrecord does not show how much of the 100-mile pipeline or the 2200-mile pipeline\\n\\nsystem crosses land held in trust by the United States and how much of it crosses land\\n\\nthat is privately owned. But all of it is within Oklahoma, and surely it facilitates\\n\\ncommerce to have a single legal regime govern what happens when a pipeline crosses\\n\\nland without the owner’s consent. Thus, this panel unanimously agrees that Oklahoma\\n\\nlaw governs the requirements of notice and demand to the trespasser.\\n\\n Where I depart from the majority is regarding the law governing whether a\\n\\npermanent injunction should issue. In my view, we should continue to apply Oklahoma\\n\\nlaw on that issue. As one leading treatise has stated, “Rights and remedies are closely\\n\\ninterrelated concepts; to deviate from the state’s definition of the latter often also would\\n\\nchange the former.” Wright & Miller § 4513 at 567. That statement appears in a\\n\\ndiscussion of the Erie doctrine, explaining why in diversity cases federal courts should\\n\\nordinarily look to state law in determining what remedy is appropriate, even when\\n\\nconsidering equitable remedies. But the point applies here as well. Once the federal\\n\\ncourt has decided that federal common law should incorporate state law regarding a cause\\n\\nof action, the same considerations should ordinarily counsel in favor of incorporating\\n\\nstate law regarding the remedies available for that cause of action.\\n\\n\\n 2\\n\\f The majority believes that there are good reasons not to follow that approach here.\\n\\nThe panel opinion states that there is “‘a distinct need for nationwide legal standards’”\\n\\nwith respect to the remedy in this case. Maj. Op. at 25 (quoting Kamen v. Kemper Fin.\\n\\nServs., Inc., 500 U.S. 90, 98 (1991)). It points out that the federal statute at issue here\\n\\npermits rights-of-way on Indian land “to help ensure that necessities such as telegraph\\n\\nlines and roads could continue without encumbrance.” Pub. Serv. Co. of New Mexico v.\\n\\nBarboan, 857 F.3d 1101, 1105 (10th Cir. 2017). It reasons that because the statute\\n\\napplies in multiple states, fulfilling this purpose requires a uniform federal standard.\\n\\n I am not persuaded. There is certainly a federal interest in uniform national\\n\\napplication of the federal statutes that govern whether there has been valid consent to an\\n\\neasement over Indian land. But once, as here, it has been determined that there has not\\n\\nbeen compliance with the statute, that interest in uniformity has been served. We begin\\n\\nwith a “‘presumption that state law should be incorporated into federal common law.’”\\n\\nUnited States v. Turley, 878 F.3d 953, 956 (10th Cir. 2017) (quoting Kamen, 500 U.S. at\\n\\n98)). That presumption has not been rebutted here.\\n\\n I see no reason why local law should not determine what consequences flow\\n\\nwhen the former beneficiary of an easement loses its rights to the easement. The district\\n\\ncourt construed Oklahoma law as giving the victim of a continuing trespass an automatic\\n\\nright to obtain an order requiring the trespasser to remove the offending property. In the\\n\\ncircumstances here, that means that Enable must remove its pipeline. What that amounts\\n\\nto in practice—since removal of the pipeline apparently would not benefit the landowners\\n\\n—is that the landowners have increased bargaining power in determining what Enable\\n\\n\\n 3\\n\\fmust pay to continue the easement. This is an inherent and important component of the\\n\\nsubstantive rights provided to Oklahoma property owners. The purposes behind the\\n\\nfederal statutes at issue here relate only to providing a reasonable mechanism for\\n\\nobtaining consent to an easement from Indian landowners. They say nothing about how\\n\\nmuch bargaining power landowners should have in negotiating with those seeking\\n\\neasements. In colloquial terms, the federal government has no dog in that fight. This is\\n\\nnot a case, for example, where the easement was granted under a federal condemnation\\n\\nstatute. In that circumstance the federal interest in having a pipeline cross the property\\n\\nmight weigh against requiring the former easement holder to remove the pipeline from\\n\\nthe burdened land. But in the present circumstance there is no such federal interest. Why\\n\\nshould remedial rights of Indian landowners be different from those of other landowners\\n\\nwho granted easements to Enable for the same pipeline? In particular, why should the\\n\\nIndian landowners have less bargaining power to negotiate a new easement price than do\\n\\nthe other landowners, who can rely on Oklahoma state law when Enable trespasses on\\n\\ntheir land?\\n\\n I acknowledge that there is problematic language in Guaranty Trust Co. of N.Y. v.\\n\\nYork, 326 U.S. 99 (1945), a diversity case. But as discussed at length in a leading\\n\\ntreatise, the Supreme Court’s language is obscure, and it is far from clear that federal\\n\\ncourts have independent authority (aside from constitutional provisions and federal rules\\n\\nof procedure) to reject state equitable principles in diversity cases. See Wright & Miller\\n\\n§ 4513; id. at 567 (“as a general rule, when forum state law defines the underlying\\n\\nsubstantive right, state law also governs the availability of such equitable remedies as a\\n\\n\\n 4\\n\\fpermanent injunction”). I would refrain from incorporating the difficulty of Guaranty\\n\\nTrust into federal-common-law doctrine when that doctrine appears to provide the means\\n\\nto resolve the issue before us.\\n\\n Also, I respectfully disagree with the panel opinion’s view that this case is\\n\\ngoverned by Supreme Court authority governing the availability of permanent injunctions\\n\\nas a remedy for federal statutory claims, as in eBay Inc. v. MercExchange, LLC, 547 U.S.\\n\\n388, 391 (2006) (infringement suit under the Patent Act); Amoco Prod. Co. v. Vill. of\\n\\nGambell, AK, 480 U.S. 531, 541–42 (1987) (preliminary injunction for violation of\\n\\nAlaska National Interest Lands Conservation Act); and Weinberger v. Romero-Barcello,\\n\\n456 U.S. 305 (1982) (violation of Federal Water Pollution Control Act). In that context,\\n\\none can presume that when Congress enacts a statutory cause of action it recognizes that\\n\\ntraditional equitable relief is available. See Weinberger, 456 U.S. at 313. Here, however,\\n\\nthere is no federal statutory cause of action.\\n\\n I hesitate to dissent from what I consider to be a fine opinion. But we are plowing\\n\\nnew ground here, and I think it useful to express some of the considerations that may\\n\\ncounsel a different approach.\\n\\n\\n\\n\\n 5\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4357831/\", \"author_raw\": \"TYMKOVICH, Chief Judge\"}]}"},"judge1":{"kind":"string","value":"TYMKOVICH"},"judge2":{"kind":"string","value":"LUCERO"},"judge3":{"kind":"string","value":"HARTZ"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4580578/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Marcia W. DAVILLA; Benjamin Blackstar; Thomas Blackstar, III; Vannette M. Branham; Edmond L. Carter; Patricia Carter Files; Harold F. Dupoint; Carrie G. Dupoint; Rudolph W. Fisher, Jr.; Cameron Keahbone; Sindy M. Keahbone; Gilbert C. Keahbone; Mark B. Keahbone; Mari L. Keahbone; Perry K. Keahbone; Blake E. Keahbone; Patrick Keahbone, Jr.; Edbert E. Keahbone, Jr.; Rena A. Killsfirst; Katina S. Lipton; Janice C. Mammedaty; Amanda M. McCarthy; Michael R. McCarthy; Mayredena M. Palmer; Rachel M. Palmer; Megan L. Palmer; Lauren Silverbird; Angela R. Silverhorn; Harvey E. Tucker; William K. Ware; Samuel M. Ware; Matthew M. Ware; Betty L. Ware; Corey Ware; Patricia Ware ; Jean Ware ; Wesley Ware, III; Melva J. Wermy, Plaintiffs-Appellees, v. ENABLE MIDSTREAM PARTNERS L.P.; Enable G.P., LLC; Enable Oklahoma Intrastate Transmission LLC, Formerly Known as Enogex, LLC, Defendants-Appellants.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n Tenth Circuit\n\n PUBLISH January 10, 2019\n Elisabeth A. Shumaker\n UNITED STATES COURT OF APPEALS Clerk of Court\n\n TENTH CIRCUIT\n\n\n\nMARCIA W. DAVILLA; BENJAMIN\nBLACKSTAR; THOMAS\nBLACKSTAR, III; VANNETTE M.\nBRANHAM; EDMOND L. CARTER;\nPATRICIA CARTER FILES;\nHAROLD F. DUPOINT; CARRIE G.\nDUPOINT; RUDOLPH W. FISHER,\nJR.; CAMERON KEAHBONE;\nSINDY M. KEAHBONE; GILBERT\nC. KEAHBONE; MARK B.\nKEAHBONE; MARI L. KEAHBONE;\nPERRY K. KEAHBONE; BLAKE E.\nKEAHBONE; PATRICK\nKEAHBONE, JR.; EDBERT E.\nKEAHBONE, JR.; RENA A.\nKILLSFIRST; KATINA S. LIPTON;\nJANICE C. MAMMEDATY;\nAMANDA M. MCCARTHY;\nMICHAEL R. MCCARTHY;\nMAYREDENA M. PALMER;\nRACHEL M. PALMER; MEGAN L.\nPALMER; LAUREN SILVERBIRD;\nANGELA R. SILVERHORN;\nHARVEY E. TUCKER; WILLIAM K.\nWARE; SAMUEL M. WARE;\nMATTHEW M. WARE; BETTY L.\nWARE; COREY WARE; PATRICIA\nWARE; JEAN WARE; WESLEY\nWARE, III; MELVA J. WERMY,\n\n Plaintiffs - Appellees,\nv. No. 17-6088\n\f ENABLE MIDSTREAM PARTNERS\n L.P.; ENABLE G.P., LLC; ENABLE\n OKLAHOMA INTRASTATE\n TRANSMISSION LLC, formerly\n known as Enogex, LLC,\n\n Defendants - Appellants.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE WESTERN DISTRICT OF OKLAHOMA\n (D.C. NO. 5:15-CV-01262-M)\n\n\nAndrew W. Lester (Barry L. Pickens, Spencer Fane LLP, Overland Park, Kansas,\nwith him on the briefs), Spencer Fane LLP, Oklahoma City, Oklahoma, for\nAppellants.\n\nDustin T. Greene (David C. Smith, Kilpatrick Townsend & Stockton LLP,\nWashington, D.C., and Thurston H. Webb, Kilpatrick Townsend & Stockton LLP,\nAtlanta, Georgia, with him on the brief), Kilpatrick Townsend & Stockton LLP,\nWinston-Salem, North Carolina, for Appellees.\n\n\nBefore TYMKOVICH, Chief Judge, LUCERO and HARTZ, Circuit Judges.\n\n\nTYMKOVICH, Chief Judge.\n\n\n Enable Intrastate Transmission, LLC owns and operates a natural gas\n\npipeline that crosses Indian allotted land in Anadarko, Oklahoma. A twenty-year\n\neasement for the pipeline expired in 2000. Enable failed to renew the easement\n\nbut also failed to remove the pipeline. In response, roughly three-dozen\n\n\n\n -2-\n\findividual Native American Allottees—who hold equitable title in the allotted\n\nland—filed this lawsuit.\n\n The district court granted summary judgment to the Allottees, ruling on the\n\nbasis of stipulated facts that Enable was liable for trespass. The court then\n\nenjoined the trespass, ordering Enable to remove the pipeline. Enable appeals\n\nboth rulings, claiming several legal errors. 1\n\n We affirm in part, reverse in part, and remand for further proceedings. The\n\ndistrict court properly granted summary judgment to the Allottees but erred in\n\nissuing the permanent injunction. The availability of equitable relief in this case\n\ndepends on the relative weight of interests not yet considered below. We leave\n\nthose considerations for the district court to determine in the first instance.\n\n I. Background\n\n “After the formation of the United States, the [Indian] tribes became\n\n‘domestic dependent nations,’ subject to plenary control by Congress.” Puerto\n\nRico v. Sanchez Valle, 136 S. Ct. 1863, 1872 (2016) (quoting United States v.\n\nLara, 541 U.S. 193, 204 (2004)); see also Cty. of Oneida v. Oneida Indian\n\nNation, 470 U.S. 226, 234 (1985) (“With the adoption of the Constitution, Indian\n\n\n\n1\n The Allottees have also filed a motion for partial dismissal of this appeal,\nasserting that we lack jurisdiction over one of the interlocutory orders issued\nbelow. The merits briefing makes clear, however, that Enable does not appeal the\norder in question. We therefore DENY the motion as moot.\n\n -3-\n\frelations became the exclusive province of federal law.”). This “plenary\n\nauthority” includes “full power to legislate concerning . . . tribal property.”\n\nWinton v. Amos, 255 U.S. 373, 391 (1921); see also Ramah Navajo Sch. Bd., Inc.\n\nv. Bureau of Revenue, 458 U.S. 832, 837 (1982) (linking Congress’s “broad\n\n[regulatory] power . . . [over] tribal affairs” to “the Indian Commerce Clause” and\n\n“the semi-autonomous status of Indian tribes” (first citing U.S. Const. art. I, § 8,\n\ncl. 3; then citing White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142\n\n(1980))). See generally White Mountain, 448 U.S. at 141–45 (explaining the\n\nrelationship between federal, state, and tribal regulatory authority).\n\n Congress exercised that power during the “Allotment Era” of the late-\n\nnineteenth and early-twentieth centuries by “carv[ing] [Indian] reservations into\n\nallotments and assign[ing] the land parcels to tribal members.” Pub. Serv. Co. v.\n\nBarboan, 857 F.3d 1101, 1104 (10th Cir. 2017). See generally id. at 1104–06\n\n(detailing the history of the Allotment Era). This project aimed to promote Indian\n\nassimilation by encouraging private property ownership and agricultural pursuits.\n\nE.g., Upper Skagit Indian Tribe v. Lundgren, 138 S. Ct. 1649, 1652 (2018).\n\n But all did not go according to plan. “[M]any of the early allottees quickly\n\nlost their land through transactions that were unwise or even procured by fraud.”\n\nCty. of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502\n\nU.S. 251, 254 (1992). In response, Congress “restricted immediate alienation or\n\n\n -4-\n\fencumbrance” in favor of a trust-based model. Id. Through the Dawes Act, ch.\n\n119, 24 Stat. 388 (1887), repealed by Indian Land Consolidation Act\n\nAmendments of 2000, Pub. L. No. 106-462, §§ 101–103, 114 Stat. 1991,\n\n1991–2006 (codified at 25 U.S.C. §§ 2201–2219), Congress empowered the\n\nPresident to allot reservation land in trust rather than granting immediate, fee\n\nsimple ownership, County of Yakima, 502 U.S. at 254. Under these trust\n\narrangements, the United States retained legal title of allotted parcels while\n\nIndian allottees received equitable title. See id. An allottee could secure a fee\n\nsimple land patent only upon dissolution of the trust, which the government would\n\nallow after a term of years or by special determination. Id. at 254–55.\n\n It was through this program that, in August of 1901, President William\n\nMcKinley allotted 160 acres of land in Anadarko, Oklahoma, to a Kiowa woman\n\nnamed Emaugobah. But Congress’s allotment project “came to an abrupt end . . .\n\nwith passage of the Indian Reorganization Act” in 1934. Id. at 255. Under that\n\nlegislation, “Congress halted further allotments and extended indefinitely the\n\nexisting periods of trust applicable to already allotted (but not yet fee-patented)\n\nIndian lands.” Id. As a result, Emaugobah never received a fee simple patent.\n\nAnd well over a century later, the federal government still holds roughly 136\n\nacres of Emaugobah’s tract in trust for the benefit of her tribe and thirty-some\n\nindividual Allottees.\n\n\n -5-\n\f Meanwhile, Congress’s vacillation on Indian land policy left “a\n\ncheckerboard of tribal, individual Indian, and individual non-Indian land\n\ninterests” across Indian country. Barboan, 857 F.3d at 1105. This, in turn,\n\ncreated its own set of problems. As Congress hemmed and hawed over Indian\n\naffairs, the American people headed west and industrialized. The Great\n\nPlains—once passable only by foot, hoof, and wagon—slowly but surely sprouted\n\na network of train tracks, telegraph wires, and other conduits of modern\n\ncommerce. “[T]o help ensure that [such modern] necessities . . . could” span the\n\ncontinent “without encumbrance,” Congress soon enacted a series of\n\n“right-of-way statutes.” Id.\n\n As relevant here, these laws empowered the Secretary of the Interior to\n\napprove easements “for all purposes . . . over and across any lands . . . held in\n\ntrust by the United States for individual Indians or Indian tribes.” 25 U.S.C.\n\n§ 323. But the Secretary could not do so unilaterally. Instead, the Secretary\n\nneeded “the consent of the proper tribal officials” or, where applicable,\n\n“individual Indian owners.” Id. § 324. In the case of allotments shared among\n\nmultiple Indians, the law required consent of a “majority of the [equitable]\n\ninterests” to approve a right-of-way. Id.\n\n In 1980, acting under these provisions, the Secretary allowed conveyance of\n\na twenty-five-foot-wide pipeline easement over a strip of Emaugobah’s allotment.\n\n\n -6-\n\fBy its terms, the easement would allow Producer’s Gas Company to “install . . .\n\nand thereafter use, operate, inspect, repair, maintain, . . . and remove a single\n\nburied [twenty-inch] natural gas pipeline” within a twenty-year period. App. 40.\n\nProducer’s Gas later conveyed both the easement and the pipeline to Enable.\n\n When the easement expired in November 2000, however, Enable’s pipeline\n\nremained buried in the ground. Enable eventually sought a new twenty-year\n\neasement by approaching the Allottees and applying for approval from the Bureau\n\nof Indian Affairs. But the company failed to secure approval for the new\n\neasement from a majority of the equitable interests. Accordingly, the Bureau\n\ncancelled Enable’s right-of-way application. Apparently undeterred, Enable\n\ncontinued to operate the pipeline.\n\n The Allottees eventually sued. Their complaint claimed Enable was\n\ncommitting a trespass and sought a court order compelling the pipeline’s removal.\n\nThe parties agreed on most of the relevant facts, so the Allottees moved for\n\npartial summary judgment on liability for trespass and injunctive relief. The\n\ndistrict court granted the motion. Enable now appeals.\n\n II. Analysis\n\n Enable raises two issues on appeal. First, it argues the district court erred\n\nin granting summary judgment to the Allottees on their trespass claims. Second,\n\nit contends the district court erred in issuing a permanent injunction to enforce the\n\n\n -7-\n\fsummary judgment ruling. We affirm the district court’s entry of summary\n\njudgment. We reverse its entry of a permanent injunction, however, and remand\n\nfor the appropriate weighing of equities.\n\n A. Summary Judgment\n\n We review district court grants of summary judgment de novo. White v.\n\nYork Int’l Corp., 45 F.3d 357, 360 (10th Cir. 1995). In so doing, we ask the same\n\nquestion the district court asked: has discovery yielded a genuine dispute of\n\n“material fact” or is the movant “entitled to judgment” on a claim or issue without\n\nany need to weigh evidence? Fed. R. Civ. P. 56(a); see Anderson v. Liberty\n\nLobby, Inc., 477 U.S. 242, 249 (1986). A genuine dispute arises where the\n\navailable evidence would allow a rational jury to accept either party’s allegation\n\nof a particular fact. See Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir.\n\n2013). But only facts that “could have an effect on the outcome” of a claim\n\nqualify as “material.” Id. (quoting EEOC v. Horizon/CMS Healthcare Corp., 220\n\nF.3d 1184, 1190 (10th Cir. 2000)). We construe all evidence and draw all\n\ninferences in favor of the party opposing a summary judgment motion. See, e.g.,\n\nEagleMed LLC v. Cox, 868 F.3d 893, 899 (10th Cir. 2017).\n\n But it is the law, not the material facts, that complicates this case. When a\n\ndispute arises over possessory rights in Indian allotted land, federal law governs.\n\nSee Nahno-Lopez v. Houser, 625 F.3d 1279, 1282 (10th Cir. 2010); cf. Clearfield\n\n\n -8-\n\fTr. Co. v. United States, 318 U.S. 363, 366 (1943) (“The rights and duties of the\n\nUnited States on commercial paper which it issues are governed by federal rather\n\nthan local law.”). And although no act of Congress expressly creates a right of\n\naction for trespass on Indian allotted land, the parties agree such a right exists.\n\nSee, Aplt. Br. at 16; Aple. Br. at 15. 2 They do, however, dispute the rules of\n\ndecision. Thus we must determine those rules as a matter of so-called “federal\n\ncommon law.” 3\n\n Because we lack a federal body of trespass law to protect the Allottees’\n\nfederal property interests, we must borrow state law to the extent it comports with\n\nfederal policy. See Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 98 (1991);\n\n\n2\n Nahno-Lopez also concerned an alleged trespass on Indian allotted land. See\n625 F.3d at 1282. In that case, however, we affirmed summary judgment to the\ndefendants due to a lack of evidence to prove an essential element. See id. at\n1283. It is therefore unclear whether we have ever formally recognized a federal\nclaim for trespass on an Indian allotment, or simply assumed such a claim’s\nexistence. Cf., e.g., Gohier v. Enright, 186 F.3d 1216, 1220–22 (10th Cir. 1999)\n(disposing of a claim under federal law without deciding whether to recognize\nthat claim).\n3\n Of course, “[t]here is no federal general common law.” Erie R.R. Co. v.\nTompkins, 304 U.S. 64, 78 (1938) (emphasis added). Nevertheless, the federal\ncourts have—confusingly—adopted the label “federal common law” to describe a\ncertain variety of statutory interpretation. See generally Martha A. Field, Sources\nof Law: The Scope of Federal Common Law, 99 Harv. L. Rev. 881, 890–97 (1986)\n(explaining the meaning of the term). Within this realm, federal courts drift far\nfrom codified text and interpret congressional silence to include rules of law\nprotecting “uniquely federal interests.” Boyle v. United Techs. Corp., 487 U.S.\n500, 504 (1988) (quoting Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S.\n630, 640 (1981)).\n\n -9-\n\fCalifornia ex rel. State Lands Comm’n v. United States, 457 U.S. 273, 283\n\n(1982); United States v. Kimbell Foods, Inc., 440 U.S. 715, 728 (1979). The State\n\nof Oklahoma recognizes a right of action in trespass where one person “actual[ly]\n\nphysical[ly] inva[des] . . . the real estate of another without the permission of the\n\nperson lawfully entitled to possession.” Williamson v. Fowler Toyota, Inc., 956\n\nP.2d 858, 862 (Okla. 1998). In other words, a trespass occurs when “one . . .\n\nenters upon the property of another without any right, lawful authority, or express\n\nor implied invitation, permission, or license.” Id. The entry must not be “in the\n\nperformance of any duty to the owner or person in charge or on any business of\n\nsuch person.” Id. Instead, a trespasser comes or remains on land “merely for his\n\nown purposes, pleasure, . . . convenience, or out of curiosity.” Id.\n\n Our reading of Oklahoma law thus yields three elements constituting the\n\nAllottees’ federal trespass claims. First, the Allottees must prove an entitlement\n\nto possession of the allotment. Second, they must prove Enable physically entered\n\nor remained on the allotment. Finally, they must prove Enable lacked a legal\n\nright—express or implied—to enter or remain. The stipulated facts already\n\ndescribed definitively prove the first two elements. Enable takes issue, however,\n\nwith the entry of summary judgment on the third.\n\n\n\n\n -10-\n\f 1. Consent as a Defense to Trespass\n\n Enable contends it has produced evidence of consent sufficient to prove a\n\nlegal right to maintain the pipeline despite the easement’s expiration. See Aplt.\n\nBr. 20–23. Moreover, Enable argues the Allottees’ failure to address this\n\nevidence in their opening summary judgment brief below should have rendered\n\nthe motion insufficient at the outset. See id. at 23–25.\n\n We first address the role of consent in this area of law. In Nahno-Lopez we\n\nconsidered a similar trespass action regarding Indian allotted land. See 625 F.3d\n\n1279. Several individual Comanche had agreed to lease their allotted land to the\n\nFort Sill Apache Tribe for development of a casino parking facility. A\n\ncontroversy then arose among the allottees, the Tribe, and the Bureau of Indian\n\nAffairs regarding the lease’s validity. The allottees sued the Tribe, claiming\n\ntrespass. The district court granted summary judgment to the Tribe.\n\n We affirmed. We reasoned that the Comanche allottees had not offered\n\nrecord evidence sufficient to survive summary judgment. We specifically noted\n\nthe Comanche allottees’ failure to controvert the Tribe’s evidence of “consent” to\n\nthe alleged trespass—namely, the lease document and acceptance of rent\n\npayments. See id. at 1280, 1284. Because, in our words, “consent forms a\n\ncomplete defense to trespass” under the incorporated Oklahoma law, we upheld\n\nthe summary judgment order. Id. at 1284.\n\n\n -11-\n\f Enable relies on this language in arguing it has a sufficient fact question\n\nregarding consent. In 2004, Enable obtained written consent forms from five of\n\nthe thirty-seven individual Allottees in this case. The forms show these five\n\nAllottees’ willingness to grant a new right-of-way for the pipeline in exchange for\n\ncash payments. 4 Despite the fact that these Allottees hold less than ten percent of\n\nthe interests in equitable title, Enable contends their consent creates a triable\n\nfactual dispute precluding summary judgment under Nahno-Lopez. See Aplt. Br.\n\nat 21–23. If consent is “a complete defense to trespass,” Enable argues, then\n\nthese forms would allow a reasonable jury to rule against trespass liability.\n\n This argument confuses the law. Admittedly, our concise presentation of\n\n“consent” as a “complete defense to trespass” in Nahno-Lopez somewhat\n\noversimplified the rule. To be sure, the rightful possessor of real property cannot\n\nhold his licensees liable for trespass under Oklahoma law. But this is\n\nbecause—as we have just explained—the defendant’s lack of a right to enter is an\n\nelement of the claim. Accordingly, evidence of a plaintiff’s consent to a\n\ndefendant’s entry on the land will defeat liability in those cases where the\n\nplaintiff’s consent itself creates a right to enter or remain. In such cases, the\n\nclaim will fail for lack of proof on an essential element.\n\n\n4\n The Allottees’ have contested the continued validity of these fourteen-year-old\nforms. See Aple. Br. at 32–33. We assume their validity for the sake of\nargument.\n\n -12-\n\f When it comes to maintaining a pipeline over Indian allotted land, however,\n\nCongress has dictated the prerequisites of a right to enter by statute. Enable thus\n\nhas no legal right to keep a structure on the Allottees’ land unless and until it\n\nsecures a right-of-way for that purpose from the Secretary of the Interior. See 25\n\nU.S.C. § 323. The Secretary must, in turn, have the approval of the relevant\n\nIndian stakeholders. See id. § 324.\n\n The statute notwithstanding, Enable argues “[a] single owner of a tenancy\n\nin common may enter into a lease for the entire co-tenancy property without any\n\nother’s consent.” Aplt. Br. at 22 (emphasis added). Enable gives us no reason to\n\nequate the Allottees’ interest in the land with a traditional tenancy in common.\n\nBut even if it were, the authorities Enable identifies do not support this bold\n\nassertion. See United States v. Craft, 535 U.S. 274, 280 (2002) (explaining, in\n\ndicta, that under traditional English common law, cotenants “may each\n\nunilaterally alienate [or encumber] their shares” but also have “the right to . . .\n\nexclude third parties from” the property (emphasis added)); Anderson v. Dyco\n\nPetroleum Corp., 782 P.2d 1367, 1371–72 & n.8 (Okla. 1989) (holding that\n\ncotenants in the “working interest in [a] natural gas well” may each “market\n\nproduction from the well and . . . [sell] gas to a purchaser . . . without consent of\n\nother cotenants,” id. at 1371). More to the point, those authorities fall well short\n\nof holding that one cotenant has no right of action for trespass under Oklahoma\n\n\n -13-\n\flaw when another cotenant—much less a small minority of cotenancy interests—\n\nhas agreed to a right-of-way easement. And though we have found no Oklahoma\n\nauthority directly on point, other jurisdictions have adopted a directly opposite\n\nview. See, e.g., Burnham v. Balt. Gas & Elec. Co., 144 A.2d 80, 87 (Md. 1958)\n\n(“The authorities appear to be uniform in holding that a cotenant cannot by\n\nhimself grant an easement that will bind his cotenants.”).\n\n Moreover, even if Oklahoma would say that this evidence could defeat any\n\ntrespass claim, we would not incorporate such a rule into the Allottees’ federal\n\nright of action. As we explained above, federal courts should only incorporate\n\nstate rules of decision into federal claims to the extent those rules are consistent\n\nwith federal law and policy. See, e.g., Kamen, 500 U.S. at 98. Needless to say,\n\nsecuring the approval of a majority of beneficial interests plus the government\n\npresents a greater challenge than getting the consent of just a few minority\n\nstakeholders. Thus, if the consent of a minority of interests in equitable title\n\ncould defeat any federal claim for trespass on an Indian allotment, there would be\n\nno point to fulfilling the more stringent requirements of securing a right-of-way\n\nunder federal statute. Adopting Enable’s view would therefore frustrate federal\n\nIndian land policy, effectively robbing Indian allottees and the government of\n\nmeaningful control over alienation. We thus reject Enable’s theory of consent.\n\n\n\n\n -14-\n\f In light of this conclusion, Enable’s proffered evidence plainly does not\n\nwarrant reversal of the district court’s summary judgment ruling. The undisputed\n\nfacts—expiration of the easement, specifically—show that Enable lacks a legal\n\nright to keep the pipeline in the ground. The consent forms would not allow a\n\nreasonable jury to find otherwise.\n\n The Allottees’ briefing below did not bar the district court from reaching\n\nthis conclusion either. To be sure, the Allottees had to show liability was\n\n“appropriate as a matter of law” to support summary judgment. Trainor v. Apollo\n\nMetal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). And they did not\n\nmention the consent evidence in their initial motion. But the consent evidence\n\nwould not have contributed to the initial showing of liability. Thus, because the\n\nAllottees raised the stipulated facts that the easement had expired and not been\n\nrenewed, the onus fell to Enable to put its right to entry at issue. See Anderson v.\n\nDep’t of Heath & Human Servs., 907 F.2d 936, 947 (10th Cir. 1990).\n\n Nor did the district court exceed its discretion by allowing the Allottees to\n\nfile a reply brief addressing consent after Enable raised the issue. See Beaird v.\n\nSeagate Tech., Inc., 145 F.3d 1159, 1164 (10th Cir. 1998) (applying the abuse of\n\ndiscretion standard). Enable had a full opportunity to brief the issue—indeed, it\n\nraised the issue itself. More importantly, Enable gives no indication that it\n\nsought and was denied an opportunity to file a surreply. Thus, the court below\n\n\n -15-\n\fhad every right to reach and resolve this issue. See Jencks v. Modern Woodmen of\n\nAm., 479 F.3d 1261, 1268–69 (10th Cir. 2007).\n\n 2. Demand for Removal\n\n Enable also argues that no duty to remove the pipeline ever arose—\n\nexpiration of the easement notwithstanding—because the Allottees never\n\ndemanded that Enable remove the pipeline.\n\n We note first that Enable failed to raise this argument below. A litigant\n\nmust preserve an issue for appellate review by pressing it in the trial court. See,\n\ne.g., Carney v. Okla. Dep’t of Pub. Safety, 875 F.3d 1347, 1351 (10th Cir. 2017).\n\nAnd because Enable has not raised it under the plain error standard here, we have\n\nno obligation to address it. See Richison v. Ernest Grp., Inc., 634 F.3d 1123,\n\n1130–31 (10th Cir. 2011).\n\n Recognizing this problem, Enable has attempted to shift blame to the\n\nAllottees. According to Enable, the Allottees could only secure summary\n\njudgment if they briefed all elements of their trespass claim—including demand\n\nfor removal. See Aplt. Br. at 18–20; Reply Br. at 2–4. But our adversarial system\n\ndoes not work that way. To be sure, a party seeking summary judgment must\n\nshow the law and available evidence compel the requested outcome. See Fed. R.\n\nCiv. P. 56; Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); Neal v. Lewis,\n\n414 F.3d 1244, 1248 (10th Cir. 2005); Reed v. Bennett, 312 F.3d 1190, 1194 (10th\n\n\n -16-\n\fCir. 2002). And to do so, he must necessarily identify governing legal principles.\n\nBut even an erroneous or incomplete view of the law can support summary\n\njudgment against a party that fails to contest it. Indeed, our courts act only as\n\n“neutral arbiter[s] of matters the parties present.” Greenlaw v. United States, 554\n\nU.S. 237, 243, 128 (2008). Thus, the movant’s burden of production at the\n\nsummary judgment stage does not abrogate the nonmovant’s obligation to contest\n\nmatters of law. If it did, district court review of summary judgment motions\n\nwould become a waste of time in many instances. See Wright v. Experian Info.\n\nSols., Inc., 805 F.3d 1232, 1244 n.6 (10th Cir. 2015).\n\n But Enable’s forfeiture does not prevent us from definitively rejecting its\n\ndemand argument on the merits. See, e.g., United States v. Jarvis, 499 F.3d 1196,\n\n1201 (10th Cir. 2007); see also Champagne Metals v. Ken-Mac Metals, Inc., 458\n\nF.3d 1073, 1088 (10th Cir. 2006) (declaring our court’s discretion to affirm on\n\nany sufficient ground the parties have had an opportunity to address). And in the\n\ninterest of clarifying the law, we think it appropriate to do so. Cf. Jarvis, 499\n\nF.3d at 1202.\n\n Again, we incorporate Oklahoma law into this federal claim so long as it\n\ndoes not frustrate federal policy. See, e.g., Kamen, 500 U.S. at 98. And we begin\n\nby noting the absence of any Oklahoma case establishing a demand requirement.\n\nSee Fairlawn Cemetery Ass’n v. First Presbyterian Church, U.S.A., 496 P.2d\n\n\n -17-\n\f1185, 1187 (Okla. 1972) (specifically considering a trespass by means of a\n\npermanent physical invasion of dirt fill); Russell v. Williams, 964 P.2d 231 (Okla.\n\nCiv. App. 1998) (considering trespass by a portion of a modular home); see also\n\nFrank v. Mayberry, 985 P.2d 773, 775–76 (Okla. 1999) (often cited as explaining\n\nOklahoma’s law of trespass); Williamson, 956 P.2d at 862 (same).\n\n Moreover, even assuming—as Enable urges—that Oklahoma follows the\n\nRestatement (Second) of Torts, see Aplt. Br. at 17 & n.6; but cf. Frank, 985 P.2d\n\nat 776 (noting that the Oklahoma Supreme Court has “quoted [the Second\n\nRestatement] with approval,” rather than adopting it), the argument still fails.\n\nThe Restatement provides that “the continued presence on the land of a structure\n\n. . . which the actor . . . has placed” there “with the consent of” the lawful\n\npossessor constitutes a trespass “if the actor fails to remove it after the consent\n\nhas been effectively terminated.” Restatement (Second) of Torts § 160 (Am. Law\n\nInst. 1977) (emphasis added). The comments clarify that “[i]f a structure . . . is\n\nplaced on the land with the possessor’s consent conditioned upon the actor’s\n\nsubsequently removing it, the termination of consent creates a duty to remove it.”\n\nId. cmt. d. And, unsurprisingly, “the lapse of any specified period of time by\n\nwhich the consent is restricted” terminates consent. Id. § 171(a).\n\n According to these rules, the easement’s expiration created a duty to\n\nremove the pipeline. Permission to lay and maintain the pipeline came\n\n\n -18-\n\fhand-in-hand with an obligation to remove it. See App. 40 (granting the easement\n\nto “install . . . and remove” the pipeline within a term of twenty years); cf. 25\n\nC.F.R. § 161.5(I) (1980) (requiring right-of-way applicants to expressly agree to\n\nrestore the land to its original condition). Indeed, there would have been no sense\n\nin limiting the easement term to twenty years otherwise. The Restatement would\n\ntherefore not impose a separate obligation to demand removal on these facts. 5\n\n To be sure, had the Allottees refused to allow Enable to remove the\n\npipeline, the Restatement might have forbidden liability for trespass. See\n\nRestatement (Second) of Torts §§ 160 cmt. m, 161 cmt. d. But Enable gives us no\n\nreason to believe the Allottees have ever prevented removal of the pipeline.\n\nInstead, Enable espouses the view that it would have incurred trespass liability for\n\nattempting to remove the pipeline unless and until the Allottees made a removal\n\ndemand. This argument mischaracterizes the right-of-way grant and misstates\n\nOklahoma law. Both allowed Enable to enter the land to remove the pipeline at\n\nleast within the easement term, if not beyond it. See App. 40; Williamson, 956\n\nP.2d at 862.\n\n Ignoring these issues, Enable focuses on rules pertaining to structures\n\n“tortiously placed” on land and subsequently transferred to new owners. See\n\n\n\n5\n For that matter, the complaint filed in district court acted as a demand for\nremoval.\n\n -19-\n\fAplt. Br. at 18 (discussing Restatement (Second) of Torts § 161). Of course,\n\nProducer’s Gas—Enable’s predecessor—did not tortiously place the pipeline on\n\nthe land; it constructed the pipeline with permission. And the fact that Enable\n\nkept the pipeline on the land without permission does not render the initial\n\nplacement tortious. Moreover, the only transfer of the pipeline occurred during\n\nthe easement term, at which point the parties agree the pipeline’s presence was\n\nstill lawful. Finally, even assuming this case had involved a transfer after\n\nexpiration of the easement, the Restatement makes clear that notice of a duty to\n\nremove—for instance, through the terms of an easement contract—binds the\n\ntransferee. See Restatement (Second) of Torts § 161(2).\n\n Finally, Enable errs by relying on the Ninth Circuit’s decision in United\n\nStates v. Milner, 583 F.3d 1174 (9th Cir. 2009), to bolster its position. In Milner,\n\nthe Ninth Circuit considered an alleged federal trespass by anti-erosion structures\n\noriginally placed on privately owned tidal uplands in Washington State. The\n\nboundary between the uplands and adjacent Indian tidelands had shifted with the\n\ngradual change of the mean high water mark over the course of several years.\n\nEventually, the boundary line shifted so far that the stationary anti-erosion\n\nstructures began encroaching on the tribal tideland. In defense against a trespass\n\nclaim, the upland owners argued they lacked the intent necessary to commit a\n\ntrespass. The Ninth Circuit rejected this argument, reasoning that intent followed\n\n\n -20-\n\frefusal to remove the structures despite notice of a duty to remove. That notice,\n\nsaid the court, followed the United States’ demand for removal as legal title\n\nholder. See id. at 1190–91.\n\n Even if we assumed the legal principles the Ninth Circuit applied in Milner\n\nhad bearing on this case, 6 they would not support Enable’s argument for a demand\n\nelement. As we have explained, Enable acquired the pipeline already knowing\n\nthe right-of-way would eventually expire. It therefore cannot—and indeed does\n\nnot—claim it lacked notice of its duty to remove or intent to maintain the\n\ntrespass.\n\n We thus reject Enable’s contention that the Allottees had to demand\n\nremoval of the pipeline for trespass liability to arise.\n\n ***\n\n\n\n\n6\n The Milner court applied the Restatement (Second) of Torts under the\nsomewhat ambiguous reasoning that both federal precedent and borrowed\nprecedent from the State of Washington supported that application. See United\nStates v. Milner, 583 F.3d 1174, 1182–83 & n.6 (9th Cir. 2009). The Restatement\nclassifies trespass traditionally as an intentional tort, see Restatement (Second) of\nTorts § 158, with “intent” meaning a “desire[] to cause consequences of” the act\nin question “or . . . belie[f] that the consequences are substantially certain to\nresult,” id. § 8A. It is worth noting, however, that the Oklahoma courts have yet\nto develop a jurisprudence of intent with regard to real property trespass.\nNevertheless, because Enable has never made an issue of it, the place of intent in\nOklahoma tort law and, consequently, federal trespass law, does not bear on our\nanalysis.\n\n -21-\n\f In sum, Enable’s arguments against summary judgment fail under the\n\nincorporated trespass law of Oklahoma. And Enable has not argued for any\n\nconflict between that law, as we understand it, and federal policy regarding Indian\n\nallotted land. We therefore affirm the district court’s grant of summary judgment.\n\n B. Permanent Injunction\n\n The Allottees’ success on the merits notwithstanding, Enable argues the\n\ndistrict court applied the wrong legal standard in determining whether to issue a\n\npermanent injunction. According to Enable, the district court incorporated a\n\nsimplified injunction rule from Oklahoma law when it should have adhered to\n\nbasic tenants of federal equity jurisprudence. Aplt. Br. at 25–28. 7\n\n We agree. By failing to apply the federal courts’ traditional equity\n\njurisprudence to its remedy analysis, the court below committed an error of law\n\nand thus abused its equitable discretion. Accordingly, we must reverse the\n\ninjunction order and remand for a full weighing of the equities.\n\n Federal district courts have the power to order injunctive relief when equity\n\nso requires. See Signature Props. Int’l Ltd. P’ship v. City of Edmond, 310 F.3d\n\n1258, 1268 (10th Cir. 2002). We review a district court’s exercise of that power\n\n\n\n7\n The Allottees contend Enable forfeited this argument by failing to raise it\nbelow. See Aple. Br. at 34–35. Our review of the briefing below, however,\nreveals that Enable did not acquiesce to the Allottees’ proposed automatic-\ninjunction rule and instead argued for the typical four-factor analysis.\n\n -22-\n\ffor abuse of discretion only. See, e.g., id. As always, however, a district court\n\nabuses its discretion when it “bases its decision on an erroneous conclusion of\n\nlaw.” Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1227 (10th Cir. 2011)\n\n(quoting Wilderness Workshop v. U.S. Bureau of Land Mgmt., 531 F.3d 1220,\n\n1224 (10th Cir. 2008)).\n\n In this case, the district court relied primarily on Oklahoma law—with\n\nsupplemental authority from other federal courts—to conclude that “equity will\n\nrestrain [a continuing] trespass.” App. 268 (quoting Fairlawn Cemetery, 496 P.2d\n\nat 1187). 8 As a result, it did not apply the usual four-factor test guiding federal\n\ncourts’ grant of permanent injunctive relief. See, e.g., eBay Inc. v.\n\nMercExchange, L. L. C., 547 U.S. 388, 391 (2006); Kitchen v. Herbert, 755 F.3d\n\n1193, 1208 (10th Cir. 2014). Though it observed “some courts have declined to\n\nenter an injunction when the trespass was unintentional and when the landowner”\n\ndelays objection, it did not think such issues at play in this case. App. 269. Thus,\n\n\n\n\n8\n Where a refusal to remove a permanent structure effects the invasion of real\nproperty, it constitutes a “continuing trespass” under Oklahoma law. Fairlawn\nCemetery, 496 P.2d at 1187. “Continuing trespass” is not a distinct legal wrong.\nRather, the ongoing, unabating nature of certain trespasses continuously gives rise\nto causes of action that the victim can sue on, and eventually can support\nequitable relief. See Hughes v. Harden, 151 P.2d 425, 427 (Okla. 1944); see also\nBradley v. Renfrow, 84 P.2d 430, 431 (Okla. 1938) (describing an allegation of\ncontinuing trespass as supporting pursuit of equitable relief).\n\n -23-\n\fwith no further weighing of the equities, the court ordered Enable to remove the\n\npipeline.\n\n Generally, federal courts adopt state law even when the dispute is\n\n“governed exclusively by federal [common] law.” See United States v. Turley,\n\n878 F.3d 953, 957 (10th Cir. 2017). “Indeed, there is a ‘presumption that state\n\nlaw should be incorporated into federal common law.’” Id. (citing Kamen v.\n\nKemper Fin. Servs., Inc., 500 U.S. 90, 98 (1991)). This is partly because courts\n\nare hesitant, and for good reason, to create federal common law rules that are\n\n“wholly the product of a federal court’s own devising.” See Kamen, 500 U.S. at\n\n98; United States v. Yazell, 382 U.S. 341, 353 (1966) (declining to “invent” a\n\nfederal common law rule and “impose it upon the States”). Such policy, even\n\nwhen applied to cases arising under federal common law rather than diversity\n\njurisdiction, supports “the twin aims of the Erie rule: discouragement of forum-\n\nshopping and avoidance of inequitable administration of the laws.” Hanna v.\n\nPlumer, 380 U.S. 460, 468 (1965).\n\n But federal courts do not mechanically apply state law in every\n\ncircumstance. “Whether to adopt state law or to fashion a nationwide federal rule\n\nis a matter of judicial policy ‘dependent upon a variety of considerations.’”\n\nUnited States v. Kimbell Foods, Inc., 440 U.S. 715, 728 (1979) (citation omitted).\n\nAnd to guide this judicial policymaking, the Supreme Court has indicated that\n\n\n -24-\n\ffederal courts should consider (1) “whether application of state law would\n\nfrustrate specific” federal interests, (2) whether there is a “need for a nationally\n\nuniform body of law,” and (3) other considerations such as whether “application\n\nof a federal rule would disrupt commercial relationships predicated on state law.”\n\nId. at 728–29; see also Kamen, 500 U.S. at 98. The considerations in this case\n\nlead us to conclude that the district court erred in applying Oklahoma rather than\n\nfederal remedial law.\n\n The district court erred because the circumstances presented here reveal “a\n\ndistinct need for nationwide legal standards.” Kamen, 500 U.S. at 98. As already\n\nexplained, Congress provided a way for the Secretary of the Interior to approve\n\neasements “over and across any lands . . . held in trust by the United States for\n\nindividual Indians or Indian tribes.” 25 U.S.C. § 323. This right-of-way statute\n\nwas “to help ensure that necessities such as telegraph lines and roads could\n\ncontinue without encumbrance.” Pub. Serv. Co. of New Mexico v. Barboan, 857\n\nF.3d 1101, 1105 (10th Cir. 2017). While this does not rise to the level of creating\n\na federal interest that federal common law should manage, the nationwide\n\napplication of this right-of-way statute suggests a need for a uniform federal\n\nstandard.\n\n This uniform standard is necessary because the Secretary has undoubtedly\n\napproved easements over and across Indian land in multiple states. And since\n\n\n -25-\n\fmany of these easements are likely for a limited duration, these easements—for\n\npipelines, telecommunication lines, and roads—like the easement at issue here,\n\nmay fail to receive consent to renew by a “majority of the [equitable] interests”\n\nand may therefore be subject to an order of removal. See id. § 324. This prospect\n\nshows the distinct need for easement holders to be subject to the same standard\n\nfor when an equitable remedy is required and when a legal remedy is\n\nsufficient—regardless of where the easement is located. Otherwise, an easement\n\nholder in Oklahoma and one in Kansas could be subject to differing permanent\n\ninjunction standards despite both receiving an easement from the Secretary of the\n\nInterior pursuant to the same federal program.\n\n We therefore conclude that the district court erred in failing to apply the\n\nfederal permanent-injunction standard even though it properly applied Oklahoma\n\ntrespass law. This is because our jurisprudence distinguishes between matters of\n\nright and matters of remedy. The Supreme Court has concluded that “State law\n\ncannot define the remedies which a federal court must give” and that “a federal\n\ncourt may afford an equitable remedy for a substantive right recognized by a State\n\neven though a state court cannot give it.” Guaranty Trust Co. of N.Y. v. York, 326\n\nU.S. 99, 105 (1945). Thus, the practice of borrowing state rules of decision does\n\nnot apply with equal force to determining appropriate remedies, especially\n\nequitable remedies, as it does to defining actionable rights.\n\n\n -26-\n\f Moreover, applying the federal permanent-injunction standard differs\n\nsignificantly from applying the federal common law of trespass. As explained,\n\nfederal courts lack a body of federal trespass law to protect the Allottees’ federal\n\nproperty interests. So applying federal trespass law would require our court to\n\nconstruct rules entirely of this court’s creation. We accordingly borrow a body of\n\nwell-developed state law to the extent it does not conflict with federal policy.\n\nThese same considerations are not present when seeking to apply federal equitable\n\nremedies, however. Applying federal remedial law does not require this court to\n\ncreate federal common law or even to “fill the interstices of federal remedial\n\nschemes” with the court’s own rules. See Kamen, 500 U.S. at 98 (declining to\n\nfashion federal rules to fill gaps in federal statutory remedial scheme); Kimbell\n\nFoods, 440 U.S. at 728 (same).\n\n This is because the federal judiciary already has a well-developed body of\n\nlaw regarding equitable remedies to guide judicial discretion. The Supreme Court\n\nhas repeatedly weighed in on the standard federal courts apply when granting or\n\ndenying a permanent injunction. See, e.g., eBay Inc. v. MercExchange, L.L.C.,\n\n547 U.S 388, 391 (2006); Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531,\n\n541–42 (1987); Weinberger v. Romero-Barcelo, 456 U.S. 305, (1982). In each\n\ncase the Supreme Court set out the proper standard for granting a permanent\n\ninjunction and chastised the circuit court for granting equitable relief based solely\n\n\n -27-\n\fon success on the merits. See Weinberger, 456 U.S. at 311–312 (“It goes without\n\nsaying that an injunction is an equitable remedy [that] . . . ‘is not a remedy which\n\nissues as of course.’”) (citation omitted). We may therefore apply a well-\n\ndeveloped federal common law standard for issuing a permanent injunction that\n\nwill fulfill the “distinct need for nationwide legal standards” called for in this\n\ncase. Kamen, 500 U.S. at 98.\n\n Thus, a federal district court’s decision to permanently enjoin a continuing\n\ntrespass on allotted land should take into account (1) whether an injunction is\n\nnecessary to prevent “irreparable harm,” (2) whether “the threatened injury\n\noutweighs the harm that the injunction may cause” to the enjoined party, and (3)\n\nwhether the injunction would “adversely affect the public interest.” Kitchen v.\n\nHerbert, 755 F.3d 1193, 1208 (10th Cir. 2014) (quoting Sw. Stainless, LP v.\n\nSappington, 582 F.3d 1176, 1191 (10th Cir. 2009)). 9 Accordingly, by ordering\n\nEnable to remove the pipeline on the basis of liability alone, the district court\n\nlegally erred and thus abused its discretion.\n\n The Allottees’ attempts to escape this conclusion do not persuade us. First,\n\nthey argue the district court did not, in fact, apply a simplified rule. Instead, they\n\n\n\n9\n We acknowledge that our circuit’s articulation of the rule differs slightly from\nthat of the Supreme Court in eBay. Compare Kitchen, 755 F.3d at 1208, with\neBay, 547 U.S. at 393. But the subtle differences are not at issue, and we think\nthe two articulations capture the same considerations in any event.\n\n -28-\n\fclaim the court merely applied the usual rule to simplified facts. See Aple. Br.\n\n35–38. But we see little support for this reading. The court below made no\n\nmention of the appropriate equitable considerations. Indeed, it went to great\n\nlengths to justify its analysis as legally, rather than just factually, appropriate.\n\n Second, the Allottees invite us to affirm the district court even if it applied\n\nincorrect law, claiming the record clearly warrants relief regardless. See Aple.\n\nBr. at 38–41. But though—as we have already noted—we may generally affirm a\n\ndistrict court order on any sufficient grounds the parties have had an opportunity\n\nto brief, see Champagne Metals, 458 F.3d at 1088, we resist that invitation. The\n\ndiscretion to issue a permanent injunction in this case rests with the district court,\n\nnot us. Cf., e.g., Bailey v. State Farm Fire & Cas. Co., 414 F.3d 1187, 1191\n\n(10th Cir. 2005). And just because we think the district court could have issued a\n\npermanent injunction under the proper test does not mean we can ignore an error\n\nof law and resolve the issue on appeal. “Injunctive relief is, by its very nature,\n\nfact-sensitive and case-specific.” New Comm Wireless Servs., Inc. v. SprintCom,\n\nInc., 287 F.3d 1, 13 (1st Cir. 2002). Thus our court should generally refrain from\n\n“uphold[ing] a preliminary injunction on a ground that was not fully addressed”\n\nbelow. Id.\n\n Moreover, if we did endeavor to balance the equities ourselves, we would\n\nnot get very far. As the above makes clear, the sheer right to exclude simply\n\n\n -29-\n\fcannot begin and end the equitable analysis. Cf. eBay, 547 U.S. at 392–93. And\n\nthe Allottees do not explain how the pipeline’s presence works “irreparable harm”\n\notherwise. Kitchen, 755 F.3d at 1208 (quoting Sappington, 582 F.3d at 1191).\n\nMore importantly, without further evidence—which the Allottees have never\n\nproffered—we have no way of knowing the relative costs and benefits of Enable\n\nremoving the pipeline, either as they pertain to these parties or the public at large.\n\nTo the extent the Allottees have addressed these concerns, their arguments have\n\noffered legal analysis in lieu of pertinent facts. See App. 120–23; Aple. Br. at\n\n38–41. In short, we will not assume the equities support injunctive relief in this\n\ncase, or whether the district court would in fact award such relief under governing\n\nlaw.\n\n In sum, we must remand the decision to the district court to weigh the\n\nequities in the first instance. 10\n\n III. Conclusion\n\n For the reasons stated above, we AFFIRM the district court’s grant of\n\nsummary judgment to the Allottees, REVERSE the entry of the permanent\n\ninjunction, and REMAND for further proceedings.\n\n\n\n\n10\n As a result, we do not reach Enable’s challenge to the district court’s\ncompliance with Rule 52 of the Federal Rules of Civil Procedure. See Aplt. Br. at\n28–30.\n\n -30-\n\f17-6088, Davilla v. Enable Midstream Partners\nHARTZ, Circuit Judge, concurrence and partial dissent:\n Except in one respect, I am pleased to join Chief Judge Tymkovich’s opinion.\n\nWhere I differ from the panel opinion is that I would apply the state law of Oklahoma,\n\nrather than federal law, to determine the remedy for Enable’s trespass. Because the panel\n\nopinion covers the ground so well, my discussion can be relatively brief.\n\n The dispute in this case concerns about 1300 feet of natural-gas pipeline that is\n\npart of a 100-mile pipeline between Canute and Cox City, Oklahoma, which in turn is\n\npart of a broader 2200-mile pipeline system within Oklahoma. Plaintiffs’ claim is that\n\nthis quarter-mile pipeline segment trespasses property held in trust for them by the United\n\nStates. Because of the interest of the federal government, federal law governs. But there\n\nis no applicable federal trespass statute, so we decide this case as a matter of federal\n\ncommon law. As a general rule, federal common law regarding interests in real property\n\nadopts the law of the state where the property is located. See United States v. Turley, 878\n\nF.3d 953, 956–57 (10th Cir. 2017). Transactions can be handled more expeditiously and\n\nwith greater confidence when the government’s counterparty knows it can rely on the\n\nlocal law with which it (or its attorney) is familiar.\n\n The dispute before us, however, does require some consideration of federal\n\nstatutory law. Easements for rights-of-way over what can be described, roughly\n\nspeaking, as Indian lands must comply with 25 U.S.C. §§ 323–28, which set forth how\n\nconsent to a right-of-way must be obtained, ordinarily through approval of the majority\n\nownership interest of the known property owners (or tribal officials, if the land is tribal\n\fland), see id. at § 324. The easement for the pipeline in this case explicitly cites to those\n\nstatutory provisions. Much of the panel opinion, with which I fully agree, explains why\n\nwe believe that such consent had lapsed for the pertinent portion of Enable’s easement.\n\n But consent is only one element of a trespass claim. For the other elements,\n\nOklahoma law governs. That choice of law makes particularly good sense here. The\n\nrecord does not show how much of the 100-mile pipeline or the 2200-mile pipeline\n\nsystem crosses land held in trust by the United States and how much of it crosses land\n\nthat is privately owned. But all of it is within Oklahoma, and surely it facilitates\n\ncommerce to have a single legal regime govern what happens when a pipeline crosses\n\nland without the owner’s consent. Thus, this panel unanimously agrees that Oklahoma\n\nlaw governs the requirements of notice and demand to the trespasser.\n\n Where I depart from the majority is regarding the law governing whether a\n\npermanent injunction should issue. In my view, we should continue to apply Oklahoma\n\nlaw on that issue. As one leading treatise has stated, “Rights and remedies are closely\n\ninterrelated concepts; to deviate from the state’s definition of the latter often also would\n\nchange the former.” Wright & Miller § 4513 at 567. That statement appears in a\n\ndiscussion of the Erie doctrine, explaining why in diversity cases federal courts should\n\nordinarily look to state law in determining what remedy is appropriate, even when\n\nconsidering equitable remedies. But the point applies here as well. Once the federal\n\ncourt has decided that federal common law should incorporate state law regarding a cause\n\nof action, the same considerations should ordinarily counsel in favor of incorporating\n\nstate law regarding the remedies available for that cause of action.\n\n\n 2\n\f The majority believes that there are good reasons not to follow that approach here.\n\nThe panel opinion states that there is “‘a distinct need for nationwide legal standards’”\n\nwith respect to the remedy in this case. Maj. Op. at 25 (quoting Kamen v. Kemper Fin.\n\nServs., Inc., 500 U.S. 90, 98 (1991)). It points out that the federal statute at issue here\n\npermits rights-of-way on Indian land “to help ensure that necessities such as telegraph\n\nlines and roads could continue without encumbrance.” Pub. Serv. Co. of New Mexico v.\n\nBarboan, 857 F.3d 1101, 1105 (10th Cir. 2017). It reasons that because the statute\n\napplies in multiple states, fulfilling this purpose requires a uniform federal standard.\n\n I am not persuaded. There is certainly a federal interest in uniform national\n\napplication of the federal statutes that govern whether there has been valid consent to an\n\neasement over Indian land. But once, as here, it has been determined that there has not\n\nbeen compliance with the statute, that interest in uniformity has been served. We begin\n\nwith a “‘presumption that state law should be incorporated into federal common law.’”\n\nUnited States v. Turley, 878 F.3d 953, 956 (10th Cir. 2017) (quoting Kamen, 500 U.S. at\n\n98)). That presumption has not been rebutted here.\n\n I see no reason why local law should not determine what consequences flow\n\nwhen the former beneficiary of an easement loses its rights to the easement. The district\n\ncourt construed Oklahoma law as giving the victim of a continuing trespass an automatic\n\nright to obtain an order requiring the trespasser to remove the offending property. In the\n\ncircumstances here, that means that Enable must remove its pipeline. What that amounts\n\nto in practice—since removal of the pipeline apparently would not benefit the landowners\n\n—is that the landowners have increased bargaining power in determining what Enable\n\n\n 3\n\fmust pay to continue the easement. This is an inherent and important component of the\n\nsubstantive rights provided to Oklahoma property owners. The purposes behind the\n\nfederal statutes at issue here relate only to providing a reasonable mechanism for\n\nobtaining consent to an easement from Indian landowners. They say nothing about how\n\nmuch bargaining power landowners should have in negotiating with those seeking\n\neasements. In colloquial terms, the federal government has no dog in that fight. This is\n\nnot a case, for example, where the easement was granted under a federal condemnation\n\nstatute. In that circumstance the federal interest in having a pipeline cross the property\n\nmight weigh against requiring the former easement holder to remove the pipeline from\n\nthe burdened land. But in the present circumstance there is no such federal interest. Why\n\nshould remedial rights of Indian landowners be different from those of other landowners\n\nwho granted easements to Enable for the same pipeline? In particular, why should the\n\nIndian landowners have less bargaining power to negotiate a new easement price than do\n\nthe other landowners, who can rely on Oklahoma state law when Enable trespasses on\n\ntheir land?\n\n I acknowledge that there is problematic language in Guaranty Trust Co. of N.Y. v.\n\nYork, 326 U.S. 99 (1945), a diversity case. But as discussed at length in a leading\n\ntreatise, the Supreme Court’s language is obscure, and it is far from clear that federal\n\ncourts have independent authority (aside from constitutional provisions and federal rules\n\nof procedure) to reject state equitable principles in diversity cases. See Wright & Miller\n\n§ 4513; id. at 567 (“as a general rule, when forum state law defines the underlying\n\nsubstantive right, state law also governs the availability of such equitable remedies as a\n\n\n 4\n\fpermanent injunction”). I would refrain from incorporating the difficulty of Guaranty\n\nTrust into federal-common-law doctrine when that doctrine appears to provide the means\n\nto resolve the issue before us.\n\n Also, I respectfully disagree with the panel opinion’s view that this case is\n\ngoverned by Supreme Court authority governing the availability of permanent injunctions\n\nas a remedy for federal statutory claims, as in eBay Inc. v. MercExchange, LLC, 547 U.S.\n\n388, 391 (2006) (infringement suit under the Patent Act); Amoco Prod. Co. v. Vill. of\n\nGambell, AK, 480 U.S. 531, 541–42 (1987) (preliminary injunction for violation of\n\nAlaska National Interest Lands Conservation Act); and Weinberger v. Romero-Barcello,\n\n456 U.S. 305 (1982) (violation of Federal Water Pollution Control Act). In that context,\n\none can presume that when Congress enacts a statutory cause of action it recognizes that\n\ntraditional equitable relief is available. See Weinberger, 456 U.S. at 313. Here, however,\n\nthere is no federal statutory cause of action.\n\n I hesitate to dissent from what I consider to be a fine opinion. But we are plowing\n\nnew ground here, and I think it useful to express some of the considerations that may\n\ncounsel a different approach.\n\n\n\n\n 5\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Marcia W. DAVILLA; Benjamin Blackstar; Thomas Blackstar, III; Vannette M. Branham; Edmond L. Carter; Patricia Carter Files; Harold F. Dupoint; Carrie G. Dupoint; Rudolph W. Fisher, Jr.; Cameron Keahbone; Sindy M. Keahbone; Gilbert C. Keahbone; Mark B. Keahbone; Mari L. Keahbone; Perry K. Keahbone; Blake E. Keahbone; Patrick Keahbone, Jr.; Edbert E. Keahbone, Jr.; Rena A. Killsfirst; Katina S. Lipton; Janice C. Mammedaty; Amanda M. McCarthy; Michael R. McCarthy; Mayredena M. Palmer; Rachel M. Palmer; Megan L. Palmer; Lauren Silverbird; Angela R. Silverhorn; Harvey E. Tucker; William K. Ware; Samuel M. Ware; Matthew M. Ware; Betty L. Ware; Corey Ware; Patricia Ware ; Jean Ware ; Wesley Ware, III; Melva J. Wermy, Plaintiffs-Appellees, v. ENABLE MIDSTREAM PARTNERS L.P.; Enable G.P., LLC; Enable Oklahoma Intrastate Transmission LLC, Formerly Known as Enogex, LLC, Defendants-Appellants.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-01-10\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n Tenth Circuit\\n\\n PUBLISH January 10, 2019\\n Elisabeth A. Shumaker\\n UNITED STATES COURT OF APPEALS Clerk of Court\\n\\n TENTH CIRCUIT\\n\\n\\n\\nMARCIA W. DAVILLA; BENJAMIN\\nBLACKSTAR; THOMAS\\nBLACKSTAR, III; VANNETTE M.\\nBRANHAM; EDMOND L. CARTER;\\nPATRICIA CARTER FILES;\\nHAROLD F. DUPOINT; CARRIE G.\\nDUPOINT; RUDOLPH W. FISHER,\\nJR.; CAMERON KEAHBONE;\\nSINDY M. KEAHBONE; GILBERT\\nC. KEAHBONE; MARK B.\\nKEAHBONE; MARI L. KEAHBONE;\\nPERRY K. KEAHBONE; BLAKE E.\\nKEAHBONE; PATRICK\\nKEAHBONE, JR.; EDBERT E.\\nKEAHBONE, JR.; RENA A.\\nKILLSFIRST; KATINA S. LIPTON;\\nJANICE C. MAMMEDATY;\\nAMANDA M. MCCARTHY;\\nMICHAEL R. MCCARTHY;\\nMAYREDENA M. PALMER;\\nRACHEL M. PALMER; MEGAN L.\\nPALMER; LAUREN SILVERBIRD;\\nANGELA R. SILVERHORN;\\nHARVEY E. TUCKER; WILLIAM K.\\nWARE; SAMUEL M. WARE;\\nMATTHEW M. WARE; BETTY L.\\nWARE; COREY WARE; PATRICIA\\nWARE; JEAN WARE; WESLEY\\nWARE, III; MELVA J. WERMY,\\n\\n Plaintiffs - Appellees,\\nv. No. 17-6088\\n\\f ENABLE MIDSTREAM PARTNERS\\n L.P.; ENABLE G.P., LLC; ENABLE\\n OKLAHOMA INTRASTATE\\n TRANSMISSION LLC, formerly\\n known as Enogex, LLC,\\n\\n Defendants - Appellants.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE WESTERN DISTRICT OF OKLAHOMA\\n (D.C. NO. 5:15-CV-01262-M)\\n\\n\\nAndrew W. Lester (Barry L. Pickens, Spencer Fane LLP, Overland Park, Kansas,\\nwith him on the briefs), Spencer Fane LLP, Oklahoma City, Oklahoma, for\\nAppellants.\\n\\nDustin T. Greene (David C. Smith, Kilpatrick Townsend & Stockton LLP,\\nWashington, D.C., and Thurston H. Webb, Kilpatrick Townsend & Stockton LLP,\\nAtlanta, Georgia, with him on the brief), Kilpatrick Townsend & Stockton LLP,\\nWinston-Salem, North Carolina, for Appellees.\\n\\n\\nBefore TYMKOVICH, Chief Judge, LUCERO and HARTZ, Circuit Judges.\\n\\n\\nTYMKOVICH, Chief Judge.\\n\\n\\n Enable Intrastate Transmission, LLC owns and operates a natural gas\\n\\npipeline that crosses Indian allotted land in Anadarko, Oklahoma. A twenty-year\\n\\neasement for the pipeline expired in 2000. Enable failed to renew the easement\\n\\nbut also failed to remove the pipeline. In response, roughly three-dozen\\n\\n\\n\\n -2-\\n\\findividual Native American Allottees—who hold equitable title in the allotted\\n\\nland—filed this lawsuit.\\n\\n The district court granted summary judgment to the Allottees, ruling on the\\n\\nbasis of stipulated facts that Enable was liable for trespass. The court then\\n\\nenjoined the trespass, ordering Enable to remove the pipeline. Enable appeals\\n\\nboth rulings, claiming several legal errors. 1\\n\\n We affirm in part, reverse in part, and remand for further proceedings. The\\n\\ndistrict court properly granted summary judgment to the Allottees but erred in\\n\\nissuing the permanent injunction. The availability of equitable relief in this case\\n\\ndepends on the relative weight of interests not yet considered below. We leave\\n\\nthose considerations for the district court to determine in the first instance.\\n\\n I. Background\\n\\n “After the formation of the United States, the [Indian] tribes became\\n\\n‘domestic dependent nations,’ subject to plenary control by Congress.” Puerto\\n\\nRico v. Sanchez Valle, 136 S. Ct. 1863, 1872 (2016) (quoting United States v.\\n\\nLara, 541 U.S. 193, 204 (2004)); see also Cty. of Oneida v. Oneida Indian\\n\\nNation, 470 U.S. 226, 234 (1985) (“With the adoption of the Constitution, Indian\\n\\n\\n\\n1\\n The Allottees have also filed a motion for partial dismissal of this appeal,\\nasserting that we lack jurisdiction over one of the interlocutory orders issued\\nbelow. The merits briefing makes clear, however, that Enable does not appeal the\\norder in question. We therefore DENY the motion as moot.\\n\\n -3-\\n\\frelations became the exclusive province of federal law.”). This “plenary\\n\\nauthority” includes “full power to legislate concerning . . . tribal property.”\\n\\nWinton v. Amos, 255 U.S. 373, 391 (1921); see also Ramah Navajo Sch. Bd., Inc.\\n\\nv. Bureau of Revenue, 458 U.S. 832, 837 (1982) (linking Congress’s “broad\\n\\n[regulatory] power . . . [over] tribal affairs” to “the Indian Commerce Clause” and\\n\\n“the semi-autonomous status of Indian tribes” (first citing U.S. Const. art. I, § 8,\\n\\ncl. 3; then citing White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142\\n\\n(1980))). See generally White Mountain, 448 U.S. at 141–45 (explaining the\\n\\nrelationship between federal, state, and tribal regulatory authority).\\n\\n Congress exercised that power during the “Allotment Era” of the late-\\n\\nnineteenth and early-twentieth centuries by “carv[ing] [Indian] reservations into\\n\\nallotments and assign[ing] the land parcels to tribal members.” Pub. Serv. Co. v.\\n\\nBarboan, 857 F.3d 1101, 1104 (10th Cir. 2017). See generally id. at 1104–06\\n\\n(detailing the history of the Allotment Era). This project aimed to promote Indian\\n\\nassimilation by encouraging private property ownership and agricultural pursuits.\\n\\nE.g., Upper Skagit Indian Tribe v. Lundgren, 138 S. Ct. 1649, 1652 (2018).\\n\\n But all did not go according to plan. “[M]any of the early allottees quickly\\n\\nlost their land through transactions that were unwise or even procured by fraud.”\\n\\nCty. of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502\\n\\nU.S. 251, 254 (1992). In response, Congress “restricted immediate alienation or\\n\\n\\n -4-\\n\\fencumbrance” in favor of a trust-based model. Id. Through the Dawes Act, ch.\\n\\n119, 24 Stat. 388 (1887), repealed by Indian Land Consolidation Act\\n\\nAmendments of 2000, Pub. L. No. 106-462, §§ 101–103, 114 Stat. 1991,\\n\\n1991–2006 (codified at 25 U.S.C. §§ 2201–2219), Congress empowered the\\n\\nPresident to allot reservation land in trust rather than granting immediate, fee\\n\\nsimple ownership, County of Yakima, 502 U.S. at 254. Under these trust\\n\\narrangements, the United States retained legal title of allotted parcels while\\n\\nIndian allottees received equitable title. See id. An allottee could secure a fee\\n\\nsimple land patent only upon dissolution of the trust, which the government would\\n\\nallow after a term of years or by special determination. Id. at 254–55.\\n\\n It was through this program that, in August of 1901, President William\\n\\nMcKinley allotted 160 acres of land in Anadarko, Oklahoma, to a Kiowa woman\\n\\nnamed Emaugobah. But Congress’s allotment project “came to an abrupt end . . .\\n\\nwith passage of the Indian Reorganization Act” in 1934. Id. at 255. Under that\\n\\nlegislation, “Congress halted further allotments and extended indefinitely the\\n\\nexisting periods of trust applicable to already allotted (but not yet fee-patented)\\n\\nIndian lands.” Id. As a result, Emaugobah never received a fee simple patent.\\n\\nAnd well over a century later, the federal government still holds roughly 136\\n\\nacres of Emaugobah’s tract in trust for the benefit of her tribe and thirty-some\\n\\nindividual Allottees.\\n\\n\\n -5-\\n\\f Meanwhile, Congress’s vacillation on Indian land policy left “a\\n\\ncheckerboard of tribal, individual Indian, and individual non-Indian land\\n\\ninterests” across Indian country. Barboan, 857 F.3d at 1105. This, in turn,\\n\\ncreated its own set of problems. As Congress hemmed and hawed over Indian\\n\\naffairs, the American people headed west and industrialized. The Great\\n\\nPlains—once passable only by foot, hoof, and wagon—slowly but surely sprouted\\n\\na network of train tracks, telegraph wires, and other conduits of modern\\n\\ncommerce. “[T]o help ensure that [such modern] necessities . . . could” span the\\n\\ncontinent “without encumbrance,” Congress soon enacted a series of\\n\\n“right-of-way statutes.” Id.\\n\\n As relevant here, these laws empowered the Secretary of the Interior to\\n\\napprove easements “for all purposes . . . over and across any lands . . . held in\\n\\ntrust by the United States for individual Indians or Indian tribes.” 25 U.S.C.\\n\\n§ 323. But the Secretary could not do so unilaterally. Instead, the Secretary\\n\\nneeded “the consent of the proper tribal officials” or, where applicable,\\n\\n“individual Indian owners.” Id. § 324. In the case of allotments shared among\\n\\nmultiple Indians, the law required consent of a “majority of the [equitable]\\n\\ninterests” to approve a right-of-way. Id.\\n\\n In 1980, acting under these provisions, the Secretary allowed conveyance of\\n\\na twenty-five-foot-wide pipeline easement over a strip of Emaugobah’s allotment.\\n\\n\\n -6-\\n\\fBy its terms, the easement would allow Producer’s Gas Company to “install . . .\\n\\nand thereafter use, operate, inspect, repair, maintain, . . . and remove a single\\n\\nburied [twenty-inch] natural gas pipeline” within a twenty-year period. App. 40.\\n\\nProducer’s Gas later conveyed both the easement and the pipeline to Enable.\\n\\n When the easement expired in November 2000, however, Enable’s pipeline\\n\\nremained buried in the ground. Enable eventually sought a new twenty-year\\n\\neasement by approaching the Allottees and applying for approval from the Bureau\\n\\nof Indian Affairs. But the company failed to secure approval for the new\\n\\neasement from a majority of the equitable interests. Accordingly, the Bureau\\n\\ncancelled Enable’s right-of-way application. Apparently undeterred, Enable\\n\\ncontinued to operate the pipeline.\\n\\n The Allottees eventually sued. Their complaint claimed Enable was\\n\\ncommitting a trespass and sought a court order compelling the pipeline’s removal.\\n\\nThe parties agreed on most of the relevant facts, so the Allottees moved for\\n\\npartial summary judgment on liability for trespass and injunctive relief. The\\n\\ndistrict court granted the motion. Enable now appeals.\\n\\n II. Analysis\\n\\n Enable raises two issues on appeal. First, it argues the district court erred\\n\\nin granting summary judgment to the Allottees on their trespass claims. Second,\\n\\nit contends the district court erred in issuing a permanent injunction to enforce the\\n\\n\\n -7-\\n\\fsummary judgment ruling. We affirm the district court’s entry of summary\\n\\njudgment. We reverse its entry of a permanent injunction, however, and remand\\n\\nfor the appropriate weighing of equities.\\n\\n A. Summary Judgment\\n\\n We review district court grants of summary judgment de novo. White v.\\n\\nYork Int’l Corp., 45 F.3d 357, 360 (10th Cir. 1995). In so doing, we ask the same\\n\\nquestion the district court asked: has discovery yielded a genuine dispute of\\n\\n“material fact” or is the movant “entitled to judgment” on a claim or issue without\\n\\nany need to weigh evidence? Fed. R. Civ. P. 56(a); see Anderson v. Liberty\\n\\nLobby, Inc., 477 U.S. 242, 249 (1986). A genuine dispute arises where the\\n\\navailable evidence would allow a rational jury to accept either party’s allegation\\n\\nof a particular fact. See Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir.\\n\\n2013). But only facts that “could have an effect on the outcome” of a claim\\n\\nqualify as “material.” Id. (quoting EEOC v. Horizon/CMS Healthcare Corp., 220\\n\\nF.3d 1184, 1190 (10th Cir. 2000)). We construe all evidence and draw all\\n\\ninferences in favor of the party opposing a summary judgment motion. See, e.g.,\\n\\nEagleMed LLC v. Cox, 868 F.3d 893, 899 (10th Cir. 2017).\\n\\n But it is the law, not the material facts, that complicates this case. When a\\n\\ndispute arises over possessory rights in Indian allotted land, federal law governs.\\n\\nSee Nahno-Lopez v. Houser, 625 F.3d 1279, 1282 (10th Cir. 2010); cf. Clearfield\\n\\n\\n -8-\\n\\fTr. Co. v. United States, 318 U.S. 363, 366 (1943) (“The rights and duties of the\\n\\nUnited States on commercial paper which it issues are governed by federal rather\\n\\nthan local law.”). And although no act of Congress expressly creates a right of\\n\\naction for trespass on Indian allotted land, the parties agree such a right exists.\\n\\nSee, Aplt. Br. at 16; Aple. Br. at 15. 2 They do, however, dispute the rules of\\n\\ndecision. Thus we must determine those rules as a matter of so-called “federal\\n\\ncommon law.” 3\\n\\n Because we lack a federal body of trespass law to protect the Allottees’\\n\\nfederal property interests, we must borrow state law to the extent it comports with\\n\\nfederal policy. See Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 98 (1991);\\n\\n\\n2\\n Nahno-Lopez also concerned an alleged trespass on Indian allotted land. See\\n625 F.3d at 1282. In that case, however, we affirmed summary judgment to the\\ndefendants due to a lack of evidence to prove an essential element. See id. at\\n1283. It is therefore unclear whether we have ever formally recognized a federal\\nclaim for trespass on an Indian allotment, or simply assumed such a claim’s\\nexistence. Cf., e.g., Gohier v. Enright, 186 F.3d 1216, 1220–22 (10th Cir. 1999)\\n(disposing of a claim under federal law without deciding whether to recognize\\nthat claim).\\n3\\n Of course, “[t]here is no federal general common law.” Erie R.R. Co. v.\\nTompkins, 304 U.S. 64, 78 (1938) (emphasis added). Nevertheless, the federal\\ncourts have—confusingly—adopted the label “federal common law” to describe a\\ncertain variety of statutory interpretation. See generally Martha A. Field, Sources\\nof Law: The Scope of Federal Common Law, 99 Harv. L. Rev. 881, 890–97 (1986)\\n(explaining the meaning of the term). Within this realm, federal courts drift far\\nfrom codified text and interpret congressional silence to include rules of law\\nprotecting “uniquely federal interests.” Boyle v. United Techs. Corp., 487 U.S.\\n500, 504 (1988) (quoting Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S.\\n630, 640 (1981)).\\n\\n -9-\\n\\fCalifornia ex rel. State Lands Comm’n v. United States, 457 U.S. 273, 283\\n\\n(1982); United States v. Kimbell Foods, Inc., 440 U.S. 715, 728 (1979). The State\\n\\nof Oklahoma recognizes a right of action in trespass where one person “actual[ly]\\n\\nphysical[ly] inva[des] . . . the real estate of another without the permission of the\\n\\nperson lawfully entitled to possession.” Williamson v. Fowler Toyota, Inc., 956\\n\\nP.2d 858, 862 (Okla. 1998). In other words, a trespass occurs when “one . . .\\n\\nenters upon the property of another without any right, lawful authority, or express\\n\\nor implied invitation, permission, or license.” Id. The entry must not be “in the\\n\\nperformance of any duty to the owner or person in charge or on any business of\\n\\nsuch person.” Id. Instead, a trespasser comes or remains on land “merely for his\\n\\nown purposes, pleasure, . . . convenience, or out of curiosity.” Id.\\n\\n Our reading of Oklahoma law thus yields three elements constituting the\\n\\nAllottees’ federal trespass claims. First, the Allottees must prove an entitlement\\n\\nto possession of the allotment. Second, they must prove Enable physically entered\\n\\nor remained on the allotment. Finally, they must prove Enable lacked a legal\\n\\nright—express or implied—to enter or remain. The stipulated facts already\\n\\ndescribed definitively prove the first two elements. Enable takes issue, however,\\n\\nwith the entry of summary judgment on the third.\\n\\n\\n\\n\\n -10-\\n\\f 1. Consent as a Defense to Trespass\\n\\n Enable contends it has produced evidence of consent sufficient to prove a\\n\\nlegal right to maintain the pipeline despite the easement’s expiration. See Aplt.\\n\\nBr. 20–23. Moreover, Enable argues the Allottees’ failure to address this\\n\\nevidence in their opening summary judgment brief below should have rendered\\n\\nthe motion insufficient at the outset. See id. at 23–25.\\n\\n We first address the role of consent in this area of law. In Nahno-Lopez we\\n\\nconsidered a similar trespass action regarding Indian allotted land. See 625 F.3d\\n\\n1279. Several individual Comanche had agreed to lease their allotted land to the\\n\\nFort Sill Apache Tribe for development of a casino parking facility. A\\n\\ncontroversy then arose among the allottees, the Tribe, and the Bureau of Indian\\n\\nAffairs regarding the lease’s validity. The allottees sued the Tribe, claiming\\n\\ntrespass. The district court granted summary judgment to the Tribe.\\n\\n We affirmed. We reasoned that the Comanche allottees had not offered\\n\\nrecord evidence sufficient to survive summary judgment. We specifically noted\\n\\nthe Comanche allottees’ failure to controvert the Tribe’s evidence of “consent” to\\n\\nthe alleged trespass—namely, the lease document and acceptance of rent\\n\\npayments. See id. at 1280, 1284. Because, in our words, “consent forms a\\n\\ncomplete defense to trespass” under the incorporated Oklahoma law, we upheld\\n\\nthe summary judgment order. Id. at 1284.\\n\\n\\n -11-\\n\\f Enable relies on this language in arguing it has a sufficient fact question\\n\\nregarding consent. In 2004, Enable obtained written consent forms from five of\\n\\nthe thirty-seven individual Allottees in this case. The forms show these five\\n\\nAllottees’ willingness to grant a new right-of-way for the pipeline in exchange for\\n\\ncash payments. 4 Despite the fact that these Allottees hold less than ten percent of\\n\\nthe interests in equitable title, Enable contends their consent creates a triable\\n\\nfactual dispute precluding summary judgment under Nahno-Lopez. See Aplt. Br.\\n\\nat 21–23. If consent is “a complete defense to trespass,” Enable argues, then\\n\\nthese forms would allow a reasonable jury to rule against trespass liability.\\n\\n This argument confuses the law. Admittedly, our concise presentation of\\n\\n“consent” as a “complete defense to trespass” in Nahno-Lopez somewhat\\n\\noversimplified the rule. To be sure, the rightful possessor of real property cannot\\n\\nhold his licensees liable for trespass under Oklahoma law. But this is\\n\\nbecause—as we have just explained—the defendant’s lack of a right to enter is an\\n\\nelement of the claim. Accordingly, evidence of a plaintiff’s consent to a\\n\\ndefendant’s entry on the land will defeat liability in those cases where the\\n\\nplaintiff’s consent itself creates a right to enter or remain. In such cases, the\\n\\nclaim will fail for lack of proof on an essential element.\\n\\n\\n4\\n The Allottees’ have contested the continued validity of these fourteen-year-old\\nforms. See Aple. Br. at 32–33. We assume their validity for the sake of\\nargument.\\n\\n -12-\\n\\f When it comes to maintaining a pipeline over Indian allotted land, however,\\n\\nCongress has dictated the prerequisites of a right to enter by statute. Enable thus\\n\\nhas no legal right to keep a structure on the Allottees’ land unless and until it\\n\\nsecures a right-of-way for that purpose from the Secretary of the Interior. See 25\\n\\nU.S.C. § 323. The Secretary must, in turn, have the approval of the relevant\\n\\nIndian stakeholders. See id. § 324.\\n\\n The statute notwithstanding, Enable argues “[a] single owner of a tenancy\\n\\nin common may enter into a lease for the entire co-tenancy property without any\\n\\nother’s consent.” Aplt. Br. at 22 (emphasis added). Enable gives us no reason to\\n\\nequate the Allottees’ interest in the land with a traditional tenancy in common.\\n\\nBut even if it were, the authorities Enable identifies do not support this bold\\n\\nassertion. See United States v. Craft, 535 U.S. 274, 280 (2002) (explaining, in\\n\\ndicta, that under traditional English common law, cotenants “may each\\n\\nunilaterally alienate [or encumber] their shares” but also have “the right to . . .\\n\\nexclude third parties from” the property (emphasis added)); Anderson v. Dyco\\n\\nPetroleum Corp., 782 P.2d 1367, 1371–72 & n.8 (Okla. 1989) (holding that\\n\\ncotenants in the “working interest in [a] natural gas well” may each “market\\n\\nproduction from the well and . . . [sell] gas to a purchaser . . . without consent of\\n\\nother cotenants,” id. at 1371). More to the point, those authorities fall well short\\n\\nof holding that one cotenant has no right of action for trespass under Oklahoma\\n\\n\\n -13-\\n\\flaw when another cotenant—much less a small minority of cotenancy interests—\\n\\nhas agreed to a right-of-way easement. And though we have found no Oklahoma\\n\\nauthority directly on point, other jurisdictions have adopted a directly opposite\\n\\nview. See, e.g., Burnham v. Balt. Gas & Elec. Co., 144 A.2d 80, 87 (Md. 1958)\\n\\n(“The authorities appear to be uniform in holding that a cotenant cannot by\\n\\nhimself grant an easement that will bind his cotenants.”).\\n\\n Moreover, even if Oklahoma would say that this evidence could defeat any\\n\\ntrespass claim, we would not incorporate such a rule into the Allottees’ federal\\n\\nright of action. As we explained above, federal courts should only incorporate\\n\\nstate rules of decision into federal claims to the extent those rules are consistent\\n\\nwith federal law and policy. See, e.g., Kamen, 500 U.S. at 98. Needless to say,\\n\\nsecuring the approval of a majority of beneficial interests plus the government\\n\\npresents a greater challenge than getting the consent of just a few minority\\n\\nstakeholders. Thus, if the consent of a minority of interests in equitable title\\n\\ncould defeat any federal claim for trespass on an Indian allotment, there would be\\n\\nno point to fulfilling the more stringent requirements of securing a right-of-way\\n\\nunder federal statute. Adopting Enable’s view would therefore frustrate federal\\n\\nIndian land policy, effectively robbing Indian allottees and the government of\\n\\nmeaningful control over alienation. We thus reject Enable’s theory of consent.\\n\\n\\n\\n\\n -14-\\n\\f In light of this conclusion, Enable’s proffered evidence plainly does not\\n\\nwarrant reversal of the district court’s summary judgment ruling. The undisputed\\n\\nfacts—expiration of the easement, specifically—show that Enable lacks a legal\\n\\nright to keep the pipeline in the ground. The consent forms would not allow a\\n\\nreasonable jury to find otherwise.\\n\\n The Allottees’ briefing below did not bar the district court from reaching\\n\\nthis conclusion either. To be sure, the Allottees had to show liability was\\n\\n“appropriate as a matter of law” to support summary judgment. Trainor v. Apollo\\n\\nMetal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). And they did not\\n\\nmention the consent evidence in their initial motion. But the consent evidence\\n\\nwould not have contributed to the initial showing of liability. Thus, because the\\n\\nAllottees raised the stipulated facts that the easement had expired and not been\\n\\nrenewed, the onus fell to Enable to put its right to entry at issue. See Anderson v.\\n\\nDep’t of Heath & Human Servs., 907 F.2d 936, 947 (10th Cir. 1990).\\n\\n Nor did the district court exceed its discretion by allowing the Allottees to\\n\\nfile a reply brief addressing consent after Enable raised the issue. See Beaird v.\\n\\nSeagate Tech., Inc., 145 F.3d 1159, 1164 (10th Cir. 1998) (applying the abuse of\\n\\ndiscretion standard). Enable had a full opportunity to brief the issue—indeed, it\\n\\nraised the issue itself. More importantly, Enable gives no indication that it\\n\\nsought and was denied an opportunity to file a surreply. Thus, the court below\\n\\n\\n -15-\\n\\fhad every right to reach and resolve this issue. See Jencks v. Modern Woodmen of\\n\\nAm., 479 F.3d 1261, 1268–69 (10th Cir. 2007).\\n\\n 2. Demand for Removal\\n\\n Enable also argues that no duty to remove the pipeline ever arose—\\n\\nexpiration of the easement notwithstanding—because the Allottees never\\n\\ndemanded that Enable remove the pipeline.\\n\\n We note first that Enable failed to raise this argument below. A litigant\\n\\nmust preserve an issue for appellate review by pressing it in the trial court. See,\\n\\ne.g., Carney v. Okla. Dep’t of Pub. Safety, 875 F.3d 1347, 1351 (10th Cir. 2017).\\n\\nAnd because Enable has not raised it under the plain error standard here, we have\\n\\nno obligation to address it. See Richison v. Ernest Grp., Inc., 634 F.3d 1123,\\n\\n1130–31 (10th Cir. 2011).\\n\\n Recognizing this problem, Enable has attempted to shift blame to the\\n\\nAllottees. According to Enable, the Allottees could only secure summary\\n\\njudgment if they briefed all elements of their trespass claim—including demand\\n\\nfor removal. See Aplt. Br. at 18–20; Reply Br. at 2–4. But our adversarial system\\n\\ndoes not work that way. To be sure, a party seeking summary judgment must\\n\\nshow the law and available evidence compel the requested outcome. See Fed. R.\\n\\nCiv. P. 56; Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); Neal v. Lewis,\\n\\n414 F.3d 1244, 1248 (10th Cir. 2005); Reed v. Bennett, 312 F.3d 1190, 1194 (10th\\n\\n\\n -16-\\n\\fCir. 2002). And to do so, he must necessarily identify governing legal principles.\\n\\nBut even an erroneous or incomplete view of the law can support summary\\n\\njudgment against a party that fails to contest it. Indeed, our courts act only as\\n\\n“neutral arbiter[s] of matters the parties present.” Greenlaw v. United States, 554\\n\\nU.S. 237, 243, 128 (2008). Thus, the movant’s burden of production at the\\n\\nsummary judgment stage does not abrogate the nonmovant’s obligation to contest\\n\\nmatters of law. If it did, district court review of summary judgment motions\\n\\nwould become a waste of time in many instances. See Wright v. Experian Info.\\n\\nSols., Inc., 805 F.3d 1232, 1244 n.6 (10th Cir. 2015).\\n\\n But Enable’s forfeiture does not prevent us from definitively rejecting its\\n\\ndemand argument on the merits. See, e.g., United States v. Jarvis, 499 F.3d 1196,\\n\\n1201 (10th Cir. 2007); see also Champagne Metals v. Ken-Mac Metals, Inc., 458\\n\\nF.3d 1073, 1088 (10th Cir. 2006) (declaring our court’s discretion to affirm on\\n\\nany sufficient ground the parties have had an opportunity to address). And in the\\n\\ninterest of clarifying the law, we think it appropriate to do so. Cf. Jarvis, 499\\n\\nF.3d at 1202.\\n\\n Again, we incorporate Oklahoma law into this federal claim so long as it\\n\\ndoes not frustrate federal policy. See, e.g., Kamen, 500 U.S. at 98. And we begin\\n\\nby noting the absence of any Oklahoma case establishing a demand requirement.\\n\\nSee Fairlawn Cemetery Ass’n v. First Presbyterian Church, U.S.A., 496 P.2d\\n\\n\\n -17-\\n\\f1185, 1187 (Okla. 1972) (specifically considering a trespass by means of a\\n\\npermanent physical invasion of dirt fill); Russell v. Williams, 964 P.2d 231 (Okla.\\n\\nCiv. App. 1998) (considering trespass by a portion of a modular home); see also\\n\\nFrank v. Mayberry, 985 P.2d 773, 775–76 (Okla. 1999) (often cited as explaining\\n\\nOklahoma’s law of trespass); Williamson, 956 P.2d at 862 (same).\\n\\n Moreover, even assuming—as Enable urges—that Oklahoma follows the\\n\\nRestatement (Second) of Torts, see Aplt. Br. at 17 & n.6; but cf. Frank, 985 P.2d\\n\\nat 776 (noting that the Oklahoma Supreme Court has “quoted [the Second\\n\\nRestatement] with approval,” rather than adopting it), the argument still fails.\\n\\nThe Restatement provides that “the continued presence on the land of a structure\\n\\n. . . which the actor . . . has placed” there “with the consent of” the lawful\\n\\npossessor constitutes a trespass “if the actor fails to remove it after the consent\\n\\nhas been effectively terminated.” Restatement (Second) of Torts § 160 (Am. Law\\n\\nInst. 1977) (emphasis added). The comments clarify that “[i]f a structure . . . is\\n\\nplaced on the land with the possessor’s consent conditioned upon the actor’s\\n\\nsubsequently removing it, the termination of consent creates a duty to remove it.”\\n\\nId. cmt. d. And, unsurprisingly, “the lapse of any specified period of time by\\n\\nwhich the consent is restricted” terminates consent. Id. § 171(a).\\n\\n According to these rules, the easement’s expiration created a duty to\\n\\nremove the pipeline. Permission to lay and maintain the pipeline came\\n\\n\\n -18-\\n\\fhand-in-hand with an obligation to remove it. See App. 40 (granting the easement\\n\\nto “install . . . and remove” the pipeline within a term of twenty years); cf. 25\\n\\nC.F.R. § 161.5(I) (1980) (requiring right-of-way applicants to expressly agree to\\n\\nrestore the land to its original condition). Indeed, there would have been no sense\\n\\nin limiting the easement term to twenty years otherwise. The Restatement would\\n\\ntherefore not impose a separate obligation to demand removal on these facts. 5\\n\\n To be sure, had the Allottees refused to allow Enable to remove the\\n\\npipeline, the Restatement might have forbidden liability for trespass. See\\n\\nRestatement (Second) of Torts §§ 160 cmt. m, 161 cmt. d. But Enable gives us no\\n\\nreason to believe the Allottees have ever prevented removal of the pipeline.\\n\\nInstead, Enable espouses the view that it would have incurred trespass liability for\\n\\nattempting to remove the pipeline unless and until the Allottees made a removal\\n\\ndemand. This argument mischaracterizes the right-of-way grant and misstates\\n\\nOklahoma law. Both allowed Enable to enter the land to remove the pipeline at\\n\\nleast within the easement term, if not beyond it. See App. 40; Williamson, 956\\n\\nP.2d at 862.\\n\\n Ignoring these issues, Enable focuses on rules pertaining to structures\\n\\n“tortiously placed” on land and subsequently transferred to new owners. See\\n\\n\\n\\n5\\n For that matter, the complaint filed in district court acted as a demand for\\nremoval.\\n\\n -19-\\n\\fAplt. Br. at 18 (discussing Restatement (Second) of Torts § 161). Of course,\\n\\nProducer’s Gas—Enable’s predecessor—did not tortiously place the pipeline on\\n\\nthe land; it constructed the pipeline with permission. And the fact that Enable\\n\\nkept the pipeline on the land without permission does not render the initial\\n\\nplacement tortious. Moreover, the only transfer of the pipeline occurred during\\n\\nthe easement term, at which point the parties agree the pipeline’s presence was\\n\\nstill lawful. Finally, even assuming this case had involved a transfer after\\n\\nexpiration of the easement, the Restatement makes clear that notice of a duty to\\n\\nremove—for instance, through the terms of an easement contract—binds the\\n\\ntransferee. See Restatement (Second) of Torts § 161(2).\\n\\n Finally, Enable errs by relying on the Ninth Circuit’s decision in United\\n\\nStates v. Milner, 583 F.3d 1174 (9th Cir. 2009), to bolster its position. In Milner,\\n\\nthe Ninth Circuit considered an alleged federal trespass by anti-erosion structures\\n\\noriginally placed on privately owned tidal uplands in Washington State. The\\n\\nboundary between the uplands and adjacent Indian tidelands had shifted with the\\n\\ngradual change of the mean high water mark over the course of several years.\\n\\nEventually, the boundary line shifted so far that the stationary anti-erosion\\n\\nstructures began encroaching on the tribal tideland. In defense against a trespass\\n\\nclaim, the upland owners argued they lacked the intent necessary to commit a\\n\\ntrespass. The Ninth Circuit rejected this argument, reasoning that intent followed\\n\\n\\n -20-\\n\\frefusal to remove the structures despite notice of a duty to remove. That notice,\\n\\nsaid the court, followed the United States’ demand for removal as legal title\\n\\nholder. See id. at 1190–91.\\n\\n Even if we assumed the legal principles the Ninth Circuit applied in Milner\\n\\nhad bearing on this case, 6 they would not support Enable’s argument for a demand\\n\\nelement. As we have explained, Enable acquired the pipeline already knowing\\n\\nthe right-of-way would eventually expire. It therefore cannot—and indeed does\\n\\nnot—claim it lacked notice of its duty to remove or intent to maintain the\\n\\ntrespass.\\n\\n We thus reject Enable’s contention that the Allottees had to demand\\n\\nremoval of the pipeline for trespass liability to arise.\\n\\n ***\\n\\n\\n\\n\\n6\\n The Milner court applied the Restatement (Second) of Torts under the\\nsomewhat ambiguous reasoning that both federal precedent and borrowed\\nprecedent from the State of Washington supported that application. See United\\nStates v. Milner, 583 F.3d 1174, 1182–83 & n.6 (9th Cir. 2009). The Restatement\\nclassifies trespass traditionally as an intentional tort, see Restatement (Second) of\\nTorts § 158, with “intent” meaning a “desire[] to cause consequences of” the act\\nin question “or . . . belie[f] that the consequences are substantially certain to\\nresult,” id. § 8A. It is worth noting, however, that the Oklahoma courts have yet\\nto develop a jurisprudence of intent with regard to real property trespass.\\nNevertheless, because Enable has never made an issue of it, the place of intent in\\nOklahoma tort law and, consequently, federal trespass law, does not bear on our\\nanalysis.\\n\\n -21-\\n\\f In sum, Enable’s arguments against summary judgment fail under the\\n\\nincorporated trespass law of Oklahoma. And Enable has not argued for any\\n\\nconflict between that law, as we understand it, and federal policy regarding Indian\\n\\nallotted land. We therefore affirm the district court’s grant of summary judgment.\\n\\n B. Permanent Injunction\\n\\n The Allottees’ success on the merits notwithstanding, Enable argues the\\n\\ndistrict court applied the wrong legal standard in determining whether to issue a\\n\\npermanent injunction. According to Enable, the district court incorporated a\\n\\nsimplified injunction rule from Oklahoma law when it should have adhered to\\n\\nbasic tenants of federal equity jurisprudence. Aplt. Br. at 25–28. 7\\n\\n We agree. By failing to apply the federal courts’ traditional equity\\n\\njurisprudence to its remedy analysis, the court below committed an error of law\\n\\nand thus abused its equitable discretion. Accordingly, we must reverse the\\n\\ninjunction order and remand for a full weighing of the equities.\\n\\n Federal district courts have the power to order injunctive relief when equity\\n\\nso requires. See Signature Props. Int’l Ltd. P’ship v. City of Edmond, 310 F.3d\\n\\n1258, 1268 (10th Cir. 2002). We review a district court’s exercise of that power\\n\\n\\n\\n7\\n The Allottees contend Enable forfeited this argument by failing to raise it\\nbelow. See Aple. Br. at 34–35. Our review of the briefing below, however,\\nreveals that Enable did not acquiesce to the Allottees’ proposed automatic-\\ninjunction rule and instead argued for the typical four-factor analysis.\\n\\n -22-\\n\\ffor abuse of discretion only. See, e.g., id. As always, however, a district court\\n\\nabuses its discretion when it “bases its decision on an erroneous conclusion of\\n\\nlaw.” Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1227 (10th Cir. 2011)\\n\\n(quoting Wilderness Workshop v. U.S. Bureau of Land Mgmt., 531 F.3d 1220,\\n\\n1224 (10th Cir. 2008)).\\n\\n In this case, the district court relied primarily on Oklahoma law—with\\n\\nsupplemental authority from other federal courts—to conclude that “equity will\\n\\nrestrain [a continuing] trespass.” App. 268 (quoting Fairlawn Cemetery, 496 P.2d\\n\\nat 1187). 8 As a result, it did not apply the usual four-factor test guiding federal\\n\\ncourts’ grant of permanent injunctive relief. See, e.g., eBay Inc. v.\\n\\nMercExchange, L. L. C., 547 U.S. 388, 391 (2006); Kitchen v. Herbert, 755 F.3d\\n\\n1193, 1208 (10th Cir. 2014). Though it observed “some courts have declined to\\n\\nenter an injunction when the trespass was unintentional and when the landowner”\\n\\ndelays objection, it did not think such issues at play in this case. App. 269. Thus,\\n\\n\\n\\n\\n8\\n Where a refusal to remove a permanent structure effects the invasion of real\\nproperty, it constitutes a “continuing trespass” under Oklahoma law. Fairlawn\\nCemetery, 496 P.2d at 1187. “Continuing trespass” is not a distinct legal wrong.\\nRather, the ongoing, unabating nature of certain trespasses continuously gives rise\\nto causes of action that the victim can sue on, and eventually can support\\nequitable relief. See Hughes v. Harden, 151 P.2d 425, 427 (Okla. 1944); see also\\nBradley v. Renfrow, 84 P.2d 430, 431 (Okla. 1938) (describing an allegation of\\ncontinuing trespass as supporting pursuit of equitable relief).\\n\\n -23-\\n\\fwith no further weighing of the equities, the court ordered Enable to remove the\\n\\npipeline.\\n\\n Generally, federal courts adopt state law even when the dispute is\\n\\n“governed exclusively by federal [common] law.” See United States v. Turley,\\n\\n878 F.3d 953, 957 (10th Cir. 2017). “Indeed, there is a ‘presumption that state\\n\\nlaw should be incorporated into federal common law.’” Id. (citing Kamen v.\\n\\nKemper Fin. Servs., Inc., 500 U.S. 90, 98 (1991)). This is partly because courts\\n\\nare hesitant, and for good reason, to create federal common law rules that are\\n\\n“wholly the product of a federal court’s own devising.” See Kamen, 500 U.S. at\\n\\n98; United States v. Yazell, 382 U.S. 341, 353 (1966) (declining to “invent” a\\n\\nfederal common law rule and “impose it upon the States”). Such policy, even\\n\\nwhen applied to cases arising under federal common law rather than diversity\\n\\njurisdiction, supports “the twin aims of the Erie rule: discouragement of forum-\\n\\nshopping and avoidance of inequitable administration of the laws.” Hanna v.\\n\\nPlumer, 380 U.S. 460, 468 (1965).\\n\\n But federal courts do not mechanically apply state law in every\\n\\ncircumstance. “Whether to adopt state law or to fashion a nationwide federal rule\\n\\nis a matter of judicial policy ‘dependent upon a variety of considerations.’”\\n\\nUnited States v. Kimbell Foods, Inc., 440 U.S. 715, 728 (1979) (citation omitted).\\n\\nAnd to guide this judicial policymaking, the Supreme Court has indicated that\\n\\n\\n -24-\\n\\ffederal courts should consider (1) “whether application of state law would\\n\\nfrustrate specific” federal interests, (2) whether there is a “need for a nationally\\n\\nuniform body of law,” and (3) other considerations such as whether “application\\n\\nof a federal rule would disrupt commercial relationships predicated on state law.”\\n\\nId. at 728–29; see also Kamen, 500 U.S. at 98. The considerations in this case\\n\\nlead us to conclude that the district court erred in applying Oklahoma rather than\\n\\nfederal remedial law.\\n\\n The district court erred because the circumstances presented here reveal “a\\n\\ndistinct need for nationwide legal standards.” Kamen, 500 U.S. at 98. As already\\n\\nexplained, Congress provided a way for the Secretary of the Interior to approve\\n\\neasements “over and across any lands . . . held in trust by the United States for\\n\\nindividual Indians or Indian tribes.” 25 U.S.C. § 323. This right-of-way statute\\n\\nwas “to help ensure that necessities such as telegraph lines and roads could\\n\\ncontinue without encumbrance.” Pub. Serv. Co. of New Mexico v. Barboan, 857\\n\\nF.3d 1101, 1105 (10th Cir. 2017). While this does not rise to the level of creating\\n\\na federal interest that federal common law should manage, the nationwide\\n\\napplication of this right-of-way statute suggests a need for a uniform federal\\n\\nstandard.\\n\\n This uniform standard is necessary because the Secretary has undoubtedly\\n\\napproved easements over and across Indian land in multiple states. And since\\n\\n\\n -25-\\n\\fmany of these easements are likely for a limited duration, these easements—for\\n\\npipelines, telecommunication lines, and roads—like the easement at issue here,\\n\\nmay fail to receive consent to renew by a “majority of the [equitable] interests”\\n\\nand may therefore be subject to an order of removal. See id. § 324. This prospect\\n\\nshows the distinct need for easement holders to be subject to the same standard\\n\\nfor when an equitable remedy is required and when a legal remedy is\\n\\nsufficient—regardless of where the easement is located. Otherwise, an easement\\n\\nholder in Oklahoma and one in Kansas could be subject to differing permanent\\n\\ninjunction standards despite both receiving an easement from the Secretary of the\\n\\nInterior pursuant to the same federal program.\\n\\n We therefore conclude that the district court erred in failing to apply the\\n\\nfederal permanent-injunction standard even though it properly applied Oklahoma\\n\\ntrespass law. This is because our jurisprudence distinguishes between matters of\\n\\nright and matters of remedy. The Supreme Court has concluded that “State law\\n\\ncannot define the remedies which a federal court must give” and that “a federal\\n\\ncourt may afford an equitable remedy for a substantive right recognized by a State\\n\\neven though a state court cannot give it.” Guaranty Trust Co. of N.Y. v. York, 326\\n\\nU.S. 99, 105 (1945). Thus, the practice of borrowing state rules of decision does\\n\\nnot apply with equal force to determining appropriate remedies, especially\\n\\nequitable remedies, as it does to defining actionable rights.\\n\\n\\n -26-\\n\\f Moreover, applying the federal permanent-injunction standard differs\\n\\nsignificantly from applying the federal common law of trespass. As explained,\\n\\nfederal courts lack a body of federal trespass law to protect the Allottees’ federal\\n\\nproperty interests. So applying federal trespass law would require our court to\\n\\nconstruct rules entirely of this court’s creation. We accordingly borrow a body of\\n\\nwell-developed state law to the extent it does not conflict with federal policy.\\n\\nThese same considerations are not present when seeking to apply federal equitable\\n\\nremedies, however. Applying federal remedial law does not require this court to\\n\\ncreate federal common law or even to “fill the interstices of federal remedial\\n\\nschemes” with the court’s own rules. See Kamen, 500 U.S. at 98 (declining to\\n\\nfashion federal rules to fill gaps in federal statutory remedial scheme); Kimbell\\n\\nFoods, 440 U.S. at 728 (same).\\n\\n This is because the federal judiciary already has a well-developed body of\\n\\nlaw regarding equitable remedies to guide judicial discretion. The Supreme Court\\n\\nhas repeatedly weighed in on the standard federal courts apply when granting or\\n\\ndenying a permanent injunction. See, e.g., eBay Inc. v. MercExchange, L.L.C.,\\n\\n547 U.S 388, 391 (2006); Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531,\\n\\n541–42 (1987); Weinberger v. Romero-Barcelo, 456 U.S. 305, (1982). In each\\n\\ncase the Supreme Court set out the proper standard for granting a permanent\\n\\ninjunction and chastised the circuit court for granting equitable relief based solely\\n\\n\\n -27-\\n\\fon success on the merits. See Weinberger, 456 U.S. at 311–312 (“It goes without\\n\\nsaying that an injunction is an equitable remedy [that] . . . ‘is not a remedy which\\n\\nissues as of course.’”) (citation omitted). We may therefore apply a well-\\n\\ndeveloped federal common law standard for issuing a permanent injunction that\\n\\nwill fulfill the “distinct need for nationwide legal standards” called for in this\\n\\ncase. Kamen, 500 U.S. at 98.\\n\\n Thus, a federal district court’s decision to permanently enjoin a continuing\\n\\ntrespass on allotted land should take into account (1) whether an injunction is\\n\\nnecessary to prevent “irreparable harm,” (2) whether “the threatened injury\\n\\noutweighs the harm that the injunction may cause” to the enjoined party, and (3)\\n\\nwhether the injunction would “adversely affect the public interest.” Kitchen v.\\n\\nHerbert, 755 F.3d 1193, 1208 (10th Cir. 2014) (quoting Sw. Stainless, LP v.\\n\\nSappington, 582 F.3d 1176, 1191 (10th Cir. 2009)). 9 Accordingly, by ordering\\n\\nEnable to remove the pipeline on the basis of liability alone, the district court\\n\\nlegally erred and thus abused its discretion.\\n\\n The Allottees’ attempts to escape this conclusion do not persuade us. First,\\n\\nthey argue the district court did not, in fact, apply a simplified rule. Instead, they\\n\\n\\n\\n9\\n We acknowledge that our circuit’s articulation of the rule differs slightly from\\nthat of the Supreme Court in eBay. Compare Kitchen, 755 F.3d at 1208, with\\neBay, 547 U.S. at 393. But the subtle differences are not at issue, and we think\\nthe two articulations capture the same considerations in any event.\\n\\n -28-\\n\\fclaim the court merely applied the usual rule to simplified facts. See Aple. Br.\\n\\n35–38. But we see little support for this reading. The court below made no\\n\\nmention of the appropriate equitable considerations. Indeed, it went to great\\n\\nlengths to justify its analysis as legally, rather than just factually, appropriate.\\n\\n Second, the Allottees invite us to affirm the district court even if it applied\\n\\nincorrect law, claiming the record clearly warrants relief regardless. See Aple.\\n\\nBr. at 38–41. But though—as we have already noted—we may generally affirm a\\n\\ndistrict court order on any sufficient grounds the parties have had an opportunity\\n\\nto brief, see Champagne Metals, 458 F.3d at 1088, we resist that invitation. The\\n\\ndiscretion to issue a permanent injunction in this case rests with the district court,\\n\\nnot us. Cf., e.g., Bailey v. State Farm Fire & Cas. Co., 414 F.3d 1187, 1191\\n\\n(10th Cir. 2005). And just because we think the district court could have issued a\\n\\npermanent injunction under the proper test does not mean we can ignore an error\\n\\nof law and resolve the issue on appeal. “Injunctive relief is, by its very nature,\\n\\nfact-sensitive and case-specific.” New Comm Wireless Servs., Inc. v. SprintCom,\\n\\nInc., 287 F.3d 1, 13 (1st Cir. 2002). Thus our court should generally refrain from\\n\\n“uphold[ing] a preliminary injunction on a ground that was not fully addressed”\\n\\nbelow. Id.\\n\\n Moreover, if we did endeavor to balance the equities ourselves, we would\\n\\nnot get very far. As the above makes clear, the sheer right to exclude simply\\n\\n\\n -29-\\n\\fcannot begin and end the equitable analysis. Cf. eBay, 547 U.S. at 392–93. And\\n\\nthe Allottees do not explain how the pipeline’s presence works “irreparable harm”\\n\\notherwise. Kitchen, 755 F.3d at 1208 (quoting Sappington, 582 F.3d at 1191).\\n\\nMore importantly, without further evidence—which the Allottees have never\\n\\nproffered—we have no way of knowing the relative costs and benefits of Enable\\n\\nremoving the pipeline, either as they pertain to these parties or the public at large.\\n\\nTo the extent the Allottees have addressed these concerns, their arguments have\\n\\noffered legal analysis in lieu of pertinent facts. See App. 120–23; Aple. Br. at\\n\\n38–41. In short, we will not assume the equities support injunctive relief in this\\n\\ncase, or whether the district court would in fact award such relief under governing\\n\\nlaw.\\n\\n In sum, we must remand the decision to the district court to weigh the\\n\\nequities in the first instance. 10\\n\\n III. Conclusion\\n\\n For the reasons stated above, we AFFIRM the district court’s grant of\\n\\nsummary judgment to the Allottees, REVERSE the entry of the permanent\\n\\ninjunction, and REMAND for further proceedings.\\n\\n\\n\\n\\n10\\n As a result, we do not reach Enable’s challenge to the district court’s\\ncompliance with Rule 52 of the Federal Rules of Civil Procedure. See Aplt. Br. at\\n28–30.\\n\\n -30-\\n\\f17-6088, Davilla v. Enable Midstream Partners\\nHARTZ, Circuit Judge, concurrence and partial dissent:\\n Except in one respect, I am pleased to join Chief Judge Tymkovich’s opinion.\\n\\nWhere I differ from the panel opinion is that I would apply the state law of Oklahoma,\\n\\nrather than federal law, to determine the remedy for Enable’s trespass. Because the panel\\n\\nopinion covers the ground so well, my discussion can be relatively brief.\\n\\n The dispute in this case concerns about 1300 feet of natural-gas pipeline that is\\n\\npart of a 100-mile pipeline between Canute and Cox City, Oklahoma, which in turn is\\n\\npart of a broader 2200-mile pipeline system within Oklahoma. Plaintiffs’ claim is that\\n\\nthis quarter-mile pipeline segment trespasses property held in trust for them by the United\\n\\nStates. Because of the interest of the federal government, federal law governs. But there\\n\\nis no applicable federal trespass statute, so we decide this case as a matter of federal\\n\\ncommon law. As a general rule, federal common law regarding interests in real property\\n\\nadopts the law of the state where the property is located. See United States v. Turley, 878\\n\\nF.3d 953, 956–57 (10th Cir. 2017). Transactions can be handled more expeditiously and\\n\\nwith greater confidence when the government’s counterparty knows it can rely on the\\n\\nlocal law with which it (or its attorney) is familiar.\\n\\n The dispute before us, however, does require some consideration of federal\\n\\nstatutory law. Easements for rights-of-way over what can be described, roughly\\n\\nspeaking, as Indian lands must comply with 25 U.S.C. §§ 323–28, which set forth how\\n\\nconsent to a right-of-way must be obtained, ordinarily through approval of the majority\\n\\nownership interest of the known property owners (or tribal officials, if the land is tribal\\n\\fland), see id. at § 324. The easement for the pipeline in this case explicitly cites to those\\n\\nstatutory provisions. Much of the panel opinion, with which I fully agree, explains why\\n\\nwe believe that such consent had lapsed for the pertinent portion of Enable’s easement.\\n\\n But consent is only one element of a trespass claim. For the other elements,\\n\\nOklahoma law governs. That choice of law makes particularly good sense here. The\\n\\nrecord does not show how much of the 100-mile pipeline or the 2200-mile pipeline\\n\\nsystem crosses land held in trust by the United States and how much of it crosses land\\n\\nthat is privately owned. But all of it is within Oklahoma, and surely it facilitates\\n\\ncommerce to have a single legal regime govern what happens when a pipeline crosses\\n\\nland without the owner’s consent. Thus, this panel unanimously agrees that Oklahoma\\n\\nlaw governs the requirements of notice and demand to the trespasser.\\n\\n Where I depart from the majority is regarding the law governing whether a\\n\\npermanent injunction should issue. In my view, we should continue to apply Oklahoma\\n\\nlaw on that issue. As one leading treatise has stated, “Rights and remedies are closely\\n\\ninterrelated concepts; to deviate from the state’s definition of the latter often also would\\n\\nchange the former.” Wright & Miller § 4513 at 567. That statement appears in a\\n\\ndiscussion of the Erie doctrine, explaining why in diversity cases federal courts should\\n\\nordinarily look to state law in determining what remedy is appropriate, even when\\n\\nconsidering equitable remedies. But the point applies here as well. Once the federal\\n\\ncourt has decided that federal common law should incorporate state law regarding a cause\\n\\nof action, the same considerations should ordinarily counsel in favor of incorporating\\n\\nstate law regarding the remedies available for that cause of action.\\n\\n\\n 2\\n\\f The majority believes that there are good reasons not to follow that approach here.\\n\\nThe panel opinion states that there is “‘a distinct need for nationwide legal standards’”\\n\\nwith respect to the remedy in this case. Maj. Op. at 25 (quoting Kamen v. Kemper Fin.\\n\\nServs., Inc., 500 U.S. 90, 98 (1991)). It points out that the federal statute at issue here\\n\\npermits rights-of-way on Indian land “to help ensure that necessities such as telegraph\\n\\nlines and roads could continue without encumbrance.” Pub. Serv. Co. of New Mexico v.\\n\\nBarboan, 857 F.3d 1101, 1105 (10th Cir. 2017). It reasons that because the statute\\n\\napplies in multiple states, fulfilling this purpose requires a uniform federal standard.\\n\\n I am not persuaded. There is certainly a federal interest in uniform national\\n\\napplication of the federal statutes that govern whether there has been valid consent to an\\n\\neasement over Indian land. But once, as here, it has been determined that there has not\\n\\nbeen compliance with the statute, that interest in uniformity has been served. We begin\\n\\nwith a “‘presumption that state law should be incorporated into federal common law.’”\\n\\nUnited States v. Turley, 878 F.3d 953, 956 (10th Cir. 2017) (quoting Kamen, 500 U.S. at\\n\\n98)). That presumption has not been rebutted here.\\n\\n I see no reason why local law should not determine what consequences flow\\n\\nwhen the former beneficiary of an easement loses its rights to the easement. The district\\n\\ncourt construed Oklahoma law as giving the victim of a continuing trespass an automatic\\n\\nright to obtain an order requiring the trespasser to remove the offending property. In the\\n\\ncircumstances here, that means that Enable must remove its pipeline. What that amounts\\n\\nto in practice—since removal of the pipeline apparently would not benefit the landowners\\n\\n—is that the landowners have increased bargaining power in determining what Enable\\n\\n\\n 3\\n\\fmust pay to continue the easement. This is an inherent and important component of the\\n\\nsubstantive rights provided to Oklahoma property owners. The purposes behind the\\n\\nfederal statutes at issue here relate only to providing a reasonable mechanism for\\n\\nobtaining consent to an easement from Indian landowners. They say nothing about how\\n\\nmuch bargaining power landowners should have in negotiating with those seeking\\n\\neasements. In colloquial terms, the federal government has no dog in that fight. This is\\n\\nnot a case, for example, where the easement was granted under a federal condemnation\\n\\nstatute. In that circumstance the federal interest in having a pipeline cross the property\\n\\nmight weigh against requiring the former easement holder to remove the pipeline from\\n\\nthe burdened land. But in the present circumstance there is no such federal interest. Why\\n\\nshould remedial rights of Indian landowners be different from those of other landowners\\n\\nwho granted easements to Enable for the same pipeline? In particular, why should the\\n\\nIndian landowners have less bargaining power to negotiate a new easement price than do\\n\\nthe other landowners, who can rely on Oklahoma state law when Enable trespasses on\\n\\ntheir land?\\n\\n I acknowledge that there is problematic language in Guaranty Trust Co. of N.Y. v.\\n\\nYork, 326 U.S. 99 (1945), a diversity case. But as discussed at length in a leading\\n\\ntreatise, the Supreme Court’s language is obscure, and it is far from clear that federal\\n\\ncourts have independent authority (aside from constitutional provisions and federal rules\\n\\nof procedure) to reject state equitable principles in diversity cases. See Wright & Miller\\n\\n§ 4513; id. at 567 (“as a general rule, when forum state law defines the underlying\\n\\nsubstantive right, state law also governs the availability of such equitable remedies as a\\n\\n\\n 4\\n\\fpermanent injunction”). I would refrain from incorporating the difficulty of Guaranty\\n\\nTrust into federal-common-law doctrine when that doctrine appears to provide the means\\n\\nto resolve the issue before us.\\n\\n Also, I respectfully disagree with the panel opinion’s view that this case is\\n\\ngoverned by Supreme Court authority governing the availability of permanent injunctions\\n\\nas a remedy for federal statutory claims, as in eBay Inc. v. MercExchange, LLC, 547 U.S.\\n\\n388, 391 (2006) (infringement suit under the Patent Act); Amoco Prod. Co. v. Vill. of\\n\\nGambell, AK, 480 U.S. 531, 541–42 (1987) (preliminary injunction for violation of\\n\\nAlaska National Interest Lands Conservation Act); and Weinberger v. Romero-Barcello,\\n\\n456 U.S. 305 (1982) (violation of Federal Water Pollution Control Act). In that context,\\n\\none can presume that when Congress enacts a statutory cause of action it recognizes that\\n\\ntraditional equitable relief is available. See Weinberger, 456 U.S. at 313. Here, however,\\n\\nthere is no federal statutory cause of action.\\n\\n I hesitate to dissent from what I consider to be a fine opinion. But we are plowing\\n\\nnew ground here, and I think it useful to express some of the considerations that may\\n\\ncounsel a different approach.\\n\\n\\n\\n\\n 5\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":378,"cells":{"id":{"kind":"number","value":4581247,"string":"4,581,247"},"name":{"kind":"string","value":"LIBERTY MUTUAL FIRE INSURANCE COMPANY, Plaintiff Counter Defendant - Appellee, v. Dennis WOOLMAN, Defendant Counter Plaintiff - Appellant, and Clayton Spencer, Defendant."},"name_abbreviation":{"kind":"string","value":"Liberty Mutual Fire Insurance v. Woolman"},"decision_date":{"kind":"string","value":"2019-01-14"},"docket_number":{"kind":"string","value":"17-3249"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Tymkovich, Holmes, Phillips\", \"parties\": \"\", \"opinions\": [{\"author\": \"PHILLIPS, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS January 14, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n LIBERTY MUTUAL FIRE INSURANCE\\n COMPANY,\\n\\n Plaintiff Counter Defendant -\\n Appellee,\\n\\n v. No. 17-3249\\n\\n DENNIS WOOLMAN,\\n\\n Defendant Counter Plaintiff -\\n Appellant,\\n\\n and\\n\\n CLAYTON SPENCER,\\n\\n Defendant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Kansas\\n (D.C. No. 2:14-CV-02332-CM)\\n _________________________________\\n\\nWesley J. Carrillo (Christopher M. Napolitano with him on the briefs), of Ensz & Jester\\nP.C., Kansas City, Missouri, for Defendant-Appellant.\\n\\nBruce A. Moothart (Charlie J. Harris, Jr., with him on the brief), of Seyferth Blumenthal\\n& Harris LLC, Kansas City, Missouri, for Plaintiff-Appellee.\\n _________________________________\\n\\nBefore TYMKOVICH, Chief Judge, HOLMES, and PHILLIPS, Circuit Judges.\\n _________________________________\\n\\nPHILLIPS, Circuit Judge.\\n\\f _________________________________\\n\\n The Federal Coal Mine Health and Safety Act of 1969, as amended by the\\n\\nBlack Lung Benefits Act (the Act), 30 U.S.C. §§ 901–945, requires coal-mine\\n\\noperators to provide benefits to miners whose contraction of pneumoconiosis—i.e.,\\n\\n“black lung” disease—from prolonged exposure to coal dust renders them totally\\n\\ndisabled. To comply with the Act, coal-mine operators must purchase a worker’s\\n\\ncompensation and employer liability insurance policy containing an “endorsement”\\n\\nensuring coverage for black-lung-benefits claims. In this appeal, Dennis Woolman—\\n\\nformer president of The Clemens Coal Company—challenges the district court’s\\n\\ndetermination that Liberty Mutual Fire Insurance Company didn’t breach a duty to\\n\\nhim by failing to procure for Clemens Coal an insurance policy with a black-lung-\\n\\ndisease endorsement. Woolman also challenges the district court’s rejection of his\\n\\nargument that Liberty Mutual should be estopped from denying black-lung-disease\\n\\ncoverage, insisting that he relied on Liberty Mutual to provide such coverage.\\n\\nExercising jurisdiction under 28 U.S.C. § 1291, we affirm.\\n\\n BACKGROUND\\n\\n Clemens Coal operated a surface coal mine in Pittsburg, Kansas until it filed\\n\\nfor bankruptcy in 1997. Woolman served as Clemens Coal’s last president before it\\n\\nwent bankrupt. Federal law required Clemens Coal to maintain worker’s\\n\\ncompensation insurance with a special endorsement covering miners’ black-lung-\\n\\ndisease benefits. See 20 C.F.R. § 726.203(a). Failure to procure such insurance could\\n\\n\\n\\n 2\\n\\fexpose Clemens Coal’s president and its officers to individual liability for black-lung\\n\\nbenefits and for civil penalties. Id. § 726.302(c)(1)–(2).\\n\\n Woolman didn’t personally procure insurance for Clemens Coal but instead\\n\\ndelegated that responsibility to James Worley, an outside consultant. In 1996, Worley\\n\\nreceived from Deborah Smith, Liberty Mutual’s commercial sales agent, a proposal\\n\\nto provide worker’s compensation and employer liability insurance to Clemens Coal.\\n\\nAfter some discussion, Worley agreed to purchase from Liberty Mutual a package\\n\\npolicy with effective dates of November 1, 1996, to November 1, 1997.1 Not only did\\n\\nthe policy not contain a black-lung-claim endorsement, it expressly excluded\\n\\ncoverage for federal occupational disease claims, such as those arising under the Act.\\n\\n Smith had never sold insurance to a coal company and wasn’t aware of the\\n\\nindustry’s exposure to black-lung claims. Worley, for his part, had never procured\\n\\ninsurance directly from an insurance company. Instead, he ordinarily consulted a\\n\\nbroker—Insurance Management Associates, Inc. (IMA)—and compared premiums\\n\\nand coverages from several potential carriers. In this case, he selected the Liberty\\n\\nMutual policy because it was $43,000 cheaper than comparable policies offered\\n\\nthrough IMA. An IMA account representative cautioned that this significant price\\n\\ndisparity suggested that the policy provided different coverages. Worley, however,\\n\\nassumed the Liberty Mutual policy was cheaper because it wasn’t in the assigned risk\\n\\npool for Kansas, which Worley understood to have considerably higher premiums.\\n\\n\\n 1\\n Although the policy was effective until November 1, 1997, it was cancelled\\non August 1, 1997, because of non-payment.\\n 3\\n\\f In 2012, Clayton Spencer—a former Clemens Coal employee—filed a claim\\n\\nwith the United States Department of Labor (DOL) against Clemens Coal for benefits\\n\\nunder the Act. After some investigation, the DOL advised Woolman that Clemens\\n\\nCoal was uninsured for black-lung-benefits claims as of July 25, 1997—the last date\\n\\nof Spencer’s employment—and that, without such coverage, Woolman, as Clemens\\n\\nCoal’s president, could be held personally liable. Woolman promptly tendered the\\n\\nclaim to Liberty Mutual for a legal defense. Liberty Mutual responded with a\\n\\nreservation-of-rights letter, stating that it hadn’t yet determined coverage for\\n\\nSpencer’s claim but that it would provide a defense during its investigation. In a\\n\\nfollow-up letter, Liberty Mutual clarified that it would defend Clemens Coal as a\\n\\ncompany—not Woolman personally—and advised Woolman to retain his own\\n\\ncounsel.\\n\\n Liberty Mutual eventually concluded that the insurance policy doesn’t cover\\n\\nSpencer’s black-lung claim, and on July 9, 2014, it sued Clemens Coal2 and\\n\\nWoolman seeking a judicial declaration to that effect. The parties stipulated that the\\n\\npolicy, “as written,” doesn’t provide coverage for Spencer’s claim. Appellee’s Suppl.\\n\\nApp. vol. 1 at 15. Nevertheless, as an affirmative defense, Woolman asserted that\\n\\nLiberty Mutual is estopped from denying black-lung-claim coverage because he\\n\\nexpected the coverage would be included in the policy and because the policy should\\n\\n\\n\\n 2\\n The district court dismissed the claims against Clemens Coal before trial\\nbecause Clemens Coal was bankrupt and thus no longer a legal entity capable of\\nbeing sued.\\n 4\\n\\fbe construed to contain the coverages that federal law requires. Woolman also\\n\\nasserted a counterclaim against Liberty Mutual for breach of its duty to act as a\\n\\nreasonably prudent insurance agent in procuring the proper coverage for Clemens\\n\\nCoal.\\n\\n The district court conducted a jury trial on Woolman’s counterclaim and a\\n\\nbench trial on his estoppel defenses. During the jury trial, the parties offered little\\n\\ndirect evidence of the circumstances surrounding Worley and Smith’s transaction to\\n\\nprocure insurance. Indeed, neither Worley nor Smith recalled the transaction, and\\n\\nWoolman, who admittedly wasn’t involved, had “no idea” what transpired.\\n\\nAppellant’s App. vol. 5 at 828:3. Smith resorted to testifying that, when selling\\n\\ninsurance, she ordinarily relied on the client to inform her of its required coverages.\\n\\nYet neither Smith nor Worley recalled discussing a need for black-lung-claim\\n\\ncoverage. And, while both Woolman and Worley testified that they intended to\\n\\nprocure whatever coverages were required by law, they admitted that they didn’t read\\n\\nthe policy to verify that it included such coverages; instead, they just assumed it did.\\n\\n Smith also testified that it was her “standard” practice to determine coverage\\n\\nneeds by reviewing the client’s expiring policy, though she regularly consulted other\\n\\nresources as many clients declined to share their prior policies. Id. vol. 4 at 585:1.\\n\\nWorley, in turn, testified that he would have permitted Smith to copy the coverages\\n\\nin Clemens Coal’s expiring policy from Hartford Underwriters Insurance Company.\\n\\nYet Smith didn’t recall reviewing the Hartford policy, and Worley didn’t recall\\n\\nsharing it. Regardless, the parties could only speculate as to the coverages that Smith\\n\\n 5\\n\\fmay have copied from the Hartford policy because it couldn’t be located at trial.3\\n\\nFurther, Liberty Mutual proffered evidence that, in a 1996 reservation-of-rights letter\\n\\nto Clemens Coal regarding a previous black-lung claim, Hartford questioned whether\\n\\nthe policy covered such claims.\\n\\n Lacking direct evidence of Worley and Smith’s transaction, Woolman urged\\n\\nthe jury to find that Liberty Mutual failed to exercise reasonable care in procuring\\n\\ninsurance based on the following series of inferences: (i) that Worley intended to\\n\\nacquire, and therefore requested, black-lung-claim coverage; (ii) that Worley\\n\\ntendered the expiring Hartford policy for Smith to review; (iii) that the policy\\n\\ncontained a black-lung-claim endorsement; and (iv) that Smith, following her\\n\\n“standard” practice, agreed to duplicate that coverage for Clemens Coal. Id. vol. 4 at\\n\\n585:1. Liberty Mutual countered that there was insufficient evidence for these\\n\\ninferences, and at the close of Woolman’s case-in-chief, it moved for judgment as a\\n\\nmatter of law under Rule 50 of the Federal Rules of Civil Procedure. The district\\n\\ncourt took the motion under advisement and permitted additional briefing.\\n\\n Woolman requested that the district court instruct the jury that his breach-of-\\n\\nduty counterclaim required proof (i) that Liberty Mutual undertook to procure\\n\\nworker’s compensation insurance for Clemens Coal; (ii) that Liberty Mutual failed to\\n\\nexercise appropriate skill, care, and diligence in that undertaking; and (iii) that\\n\\n\\n\\n 3\\n Only the policy’s “Change in Information Page” was produced, and it didn’t\\nindicate whether the policy had a black-lung-claim endorsement. Appellee’s Suppl.\\nApp. vol. 2 at 40.\\n 6\\n\\fWoolman suffered damages as a result. The court rejected Woolman’s request and,\\n\\ninstead, instructed the jury to determine whether Liberty Mutual breached a duty that\\n\\nit owed directly to Woolman as its “client.” Id. vol. 2 at 225–26. Woolman objected\\n\\nand asked for an instruction that Liberty Mutual owed him a duty “as the President of\\n\\nClemens Coal,” but the court overruled the objection. Id. vol. 5 at 907:23.\\n\\n The jury returned a verdict for Woolman on his counterclaim, awarding him\\n\\n$18,000 in damages. The district court, however, set aside the verdict and granted\\n\\nLiberty Mutual’s motion for judgment as a matter of law, concluding that Liberty\\n\\nMutual didn’t owe a duty to Woolman. Liberty Mut. Fire Ins. Co. v. Clemens Coal\\n\\nCo., 2016 WL 5817073, at *2 (D. Kan. Oct. 4, 2016). Months later, the court issued\\n\\nfindings of fact and conclusions of law regarding Woolman’s estoppel defenses. See\\n\\nLiberty Mut. Fire Ins. Co. v. Clemens Coal Co., 250 F. Supp. 3d 825, 832–39 (D.\\n\\nKan. 2017). Finding no evidence that Liberty Mutual had represented it would\\n\\nprocure black-lung-claim coverage for Woolman or that Woolman justifiably relied\\n\\non such representations, the court ruled against Woolman on the estoppel defenses\\n\\nand entered judgment in Liberty Mutual’s favor on its declaratory judgment claim.\\n\\nId. at 839.\\n\\n Woolman filed a post-trial motion to alter or amend the court’s judgment or, in\\n\\nthe alternative, for a new trial on his estoppel defenses. The court denied the motion.\\n\\nWoolman timely appealed, challenging the counterclaim and estoppel rulings as well\\n\\nas aspects of the court’s denial of his request for post-trial relief.\\n\\n\\n\\n 7\\n\\f DISCUSSION\\n\\n We first address Woolman’s argument that the district court improperly\\n\\ngranted Liberty Mutual’s motion for judgment as a matter of law on his breach-of-\\n\\nduty counterclaim. We then turn to Woolman’s argument that Liberty Mutual should\\n\\nbe judicially estopped from contesting that it owed him a duty. Finally, we address\\n\\nWoolman’s challenges to the district court’s ruling on his equitable and promissory\\n\\nestoppel defenses.\\n\\nI. Woolman’s Breach-of-Duty Counterclaim\\n\\n We review de novo a grant of judgment as a matter of law under Rule 50,\\n\\napplying the same standards as the district court. Elm Ridge Expl. Co., LLC v. Engle,\\n\\n721 F.3d 1199, 1216 (10th Cir. 2013). “All reasonable inferences are drawn in favor\\n\\nof the nonmoving party and this court does ‘not make credibility determinations or\\n\\nweigh the evidence.’” Stewart v. Adolph Coors Co., 217 F.3d 1285, 1288 (10th Cir.\\n\\n2000) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150\\n\\n(2000)). Judgment as a matter of law is appropriate only if a “reasonable jury would\\n\\nnot have a legally sufficient evidentiary basis” to find for the opposing party.\\n\\nFed. R. Civ. P. 50(a)(1); see also Finley v. United States, 82 F.3d 966, 968 (10th Cir.\\n\\n1996) (“[T]he evidence [must] point[] but one way and [be] susceptible to no\\n\\nreasonable inferences which may support the opposing party’s position.”) (quoting\\n\\nQ.E.R., Inc. v. Hickerson, 880 F.2d 1178, 1180 (10th Cir. 1989) (per curiam)).\\n\\n\\n\\n\\n 8\\n\\f A. The “Exercise Care” Duty\\n\\n This is an action for failure to procure insurance, not an action for breach of\\n\\nthe insurance contract itself. Kansas courts refer to insurance agents’ “exercise care\\n\\nduty” in such circumstances. Marshel Invs., Inc. v. Cohen, 634 P.2d 133, 141 (Kan.\\n\\nCt. App. 1981). Under Kansas law, the general rule is that “an insurance agent or\\n\\nbroker who undertakes to procure insurance for another owes to the client the duty to\\n\\nexercise the skill, care and diligence that would be exercised by a reasonably prudent\\n\\nand competent insurance agent or broker acting under the same circumstances.” Id.\\n\\nAn action for breach of this duty sounds in both contract and tort because “the duty is\\n\\nboth an implied contractual term of the undertaking (contract duty) and a part of the\\n\\nfiduciary duty owed the client by reason of the principal-agent relationship arising\\n\\nout of the undertaking (tort duty).” Id. at 142.\\n\\n On appeal, Woolman argues that, although his breach-of-duty counterclaim\\n\\nsounds in both tort and contract, the district court “ignored the contractual nature” of\\n\\nthe claim. Appellant’s Opening Br. at 18. Woolman misreads the court’s analysis.\\n\\nThe court expressly rejected Woolman’s contract theory, reasoning that Liberty\\n\\nMutual didn’t undertake to procure insurance for Woolman as its client or to make\\n\\nthe insurance contract for his benefit. That the court referenced a “negligence\\n\\ncounterclaim,” see Liberty Mut., 2016 WL 5817073, at *2, doesn’t vitiate its\\n\\nsubstantive contractual analysis, cf. Appellant’s Opening Br. at 18 (arguing that the\\n\\nreference “demonstrates the [court’s] misapplication of the claim”).\\n\\n\\n\\n 9\\n\\f Woolman also contends that the district court “invaded the province of the\\n\\njury” when it determined, as a matter of law, that Liberty Mutual didn’t owe him a\\n\\nduty sounding in contract. Appellant’s Opening Br. at 18. In his view, the jury was\\n\\n“capable and required” to make that determination because the existence of a contract\\n\\nduty entails a factual inquiry into whether the parties formed an agreement to procure\\n\\ninsurance. Id. Woolman is doubly wrong. In the first instance, “whether a duty exists\\n\\nis a question of law” for the court to decide. Deal v. Bowman, 188 P.3d 941, 946\\n\\n(Kan. 2008) (brackets omitted) (quoting Nero v. Kan. State Univ., 861 P.2d 768, 772\\n\\n(Kan. 1993)). Even if the jury made a predicate factual finding that a contract exists,\\n\\nwhether Liberty Mutual owed Woolman a duty in connection with that contract is a\\n\\nquestion of law. And second, regardless, factual findings are not impervious to\\n\\njudicial scrutiny on a Rule 50 motion simply because the jury is the factfinder. To the\\n\\ncontrary, Rule 50 requires the court to interrogate the facts to determine whether a\\n\\n“legally sufficient evidentiary basis” exists to find for a party on a given issue. See\\n\\nFed. R. Civ. P. 50(a)(1).\\n\\n In short, the district court didn’t exceed its authority in holding, as a matter of\\n\\nlaw, that Liberty Mutual didn’t owe a contractual duty to Woolman. We now turn to\\n\\nthe substantive question whether judgment as a matter of law was appropriate as to\\n\\nWoolman’s breach-of-duty counterclaim.\\n\\n B. Contractual Breach\\n\\n Woolman advances two contract-based theories for why Liberty Mutual owed\\n\\nhim a duty to exercise care in procuring insurance: (i) that Liberty Mutual agreed to\\n\\n 10\\n\\fprocure insurance for him directly as its client; and (ii) that he was an intended third-\\n\\nparty beneficiary of Liberty Mutual’s agreement to procure insurance for Clemens\\n\\nCoal. The district court rejected both theories, finding no evidence either that\\n\\nWoolman and Liberty Mutual had a contractual relationship or that Clemens Coal\\n\\nand Liberty Mutual intended to procure insurance for Woolman’s benefit. We take\\n\\nthese issues in turn.\\n\\n 1. Evidence of a Direct Contractual Relationship between\\n Liberty Mutual and Woolman\\n\\n To resolve Woolman’s first theory, we must determine whether a reasonable\\n\\njury, viewing the evidence in the light most favorable to Woolman, could conclude\\n\\nthat Liberty Mutual and Woolman formed a “contract to procure insurance.” See\\n\\nCasas v. Farmers Ins. Exch., 130 P.3d 1201, 1209 (Kan. Ct. App. 2005). In assessing\\n\\nwhether such an agreement exists, we apply “the general rules pertaining to the law\\n\\nof contracts,” Marker v. Preferred Fire Ins. Co., 506 P.2d 1163, 1168 (Kan. 1973),\\n\\nincluding the requirements of mutual assent to and consideration for the bargain, see\\n\\nUnified Sch. Dist. No. 446 v. Sandoval, 286 P.3d 542, 549 (Kan. 2012). The record in\\n\\nthis case is bereft of evidence supporting either requirement.4\\n\\n\\n 4\\n Because we conclude that Liberty Mutual didn’t manifest its assent to\\nprocure insurance for Woolman, we needn’t reach the question whether Woolman\\nprovided consideration for the bargain. In any case, Woolman doesn’t proffer any\\nevidence on that score. Ordinarily, the consideration for an agent’s undertaking to\\nprocure insurance is the agent’s expectation of pecuniary gain when the proposed\\ninsured pays the policy’s premium. See Marker, 506 P.2d at 1168. Here, no evidence\\nsuggests that Woolman personally—rather than Clemens Coal—would have paid the\\npremium for the coverage that he sought. Accordingly, even if the parties mutually\\nassented to procure such coverage, no binding contract exists.\\n 11\\n\\f At the outset, there’s no evidence that Woolman requested insurance from\\n\\nLiberty Mutual or that Liberty Mutual undertook to insure him. Woolman admittedly\\n\\nwasn’t involved in negotiating the policy and didn’t instruct Worley to request any\\n\\ncoverages on his behalf. That Woolman, as Clemens Coal’s president, subjectively\\n\\ndesired coverage to indemnify himself from liability for black-lung claims doesn’t\\n\\nevince mutual assent with Liberty Mutual to procure such coverage.5 Indeed, there’s\\n\\nno evidence that Liberty Mutual was even aware of Woolman’s need for black-lung-\\n\\nclaim coverage. Regardless, Clemens Coal, not Woolman, was the client for whom\\n\\nLiberty Mutual undertook to procure insurance.\\n\\n Lacking evidence of an express agreement, Woolman asserts that Liberty\\n\\nMutual implicitly agreed to procure insurance for him. In effect, he reasons that, as\\n\\nthe individual with responsibility for Clemens Coal’s actions, he was Liberty\\n\\nMutual’s true “client.” See id. (“[R]easonable implication can be used to determine\\n\\nwho the client is[.]”). It is hornbook law, however, that an implied-in-fact contract\\n\\ndoesn’t exist absent evidence of the parties’ “mutual intent to contract.” Mai v.\\n\\nYoutsey, 646 P.2d 475, 479 (Kan. 1982); see also Smith v. Amoco Prod. Co., 31 P.3d\\n\\n255, 265 (Kan. 2001) (“[An implied contract] is the product of agreement, although it\\n\\n\\n\\n\\n 5\\n Woolman suggests that an agreement to procure insurance for him requires\\nonly that he “selected and relied upon Liberty Mutual.” See Appellant’s Reply Br. at\\n2. Although probative of his estoppel defenses, Woolman’s reliance is irrelevant to\\nthe question whether he and Liberty Mutual had a binding contract to procure\\ninsurance. As with any contract, parties to an agreement to procure insurance must\\nmutually assent to its terms. Unilateral reliance doesn’t create a contract.\\n 12\\n\\fis not expressed in words.”). Liberty Mutual’s intent to contract with Clemens Coal\\n\\ndoesn’t equate to an intent to contract with its officers.\\n\\n Perhaps recognizing this, Woolman suggests that his status as the “client” is\\n\\nirrelevant to whether Liberty Mutual owed him a duty to exercise care. See\\n\\nAppellant’s Opening Br. at 23. Woolman essentially argues that the duty attaches\\n\\nregardless of whether Liberty Mutual contracted to procure insurance for him\\n\\nbecause Liberty Mutual should have undertaken to insure him.6 Yet Kansas law is\\n\\nclear: an insurance agent “owes to the client” the duty to exercise care. Marshel, 634\\n\\nP.2d at 141 (emphasis added); see also Marker, 506 P.2d at 1169 (noting that a\\n\\nfailure to procure insurance requires that “the relationship of broker and client has\\n\\nbeen established with mutual obligations arising from that relationship”). Absent\\n\\nevidence of an agent-client relationship, Liberty Mutual wasn’t contractually bound\\n\\nto procure insurance for Woolman.\\n\\n 2. Evidence that Clemens Coal and Liberty Mutual Intended to\\n Procure Insurance for Woolman’s Benefit\\n\\n Woolman’s assertion that he is an intended beneficiary of Liberty Mutual and\\n\\nClemens Coal’s agreement to procure insurance similarly fails. Under Kansas law,\\n\\n“parties are presumed to contract for themselves, and their intent that a third person\\n\\n\\n 6\\n Woolman further elaborates that, had Liberty Mutual procured the proper\\ninsurance, the policy “would have made Woolman a party as an insured under the\\nblack lung endorsement.” See Appellant’s Opening Br. at 23. This puts the cart\\nbefore the horse. Whether Woolman would have been a party to a hypothetical\\ninsurance contract has no bearing on whether he was a party to an agreement to\\nprocure such insurance. And regardless, an insured party isn’t necessarily a\\ncontracting party.\\n 13\\n\\freceive a direct benefit must be clearly expressed in the contract.” Byers v. Snyder,\\n\\n237 P.3d 1258, 1265 (Kan. Ct. App. 2010); see also In re Shevling, 97 P.3d 1036,\\n\\n1040 (Kan. 2004) (same). An individual claiming third-party-beneficiary status has\\n\\nthe burden of showing the existence of a “provision in the contract that operates to\\n\\nhis benefit.” State ex rel. Stovall v. Reliance Ins. Co., 107 P.3d 1219, 1231 (Kan.\\n\\n2005) (quoting Hartford Fire Ins. Co. v. W. Fire Ins. Co., 597 P.2d 622, 632 (Kan.\\n\\n1979)). A reviewing court, in turn, applies “general rules for construction of\\n\\ncontracts” in assessing a third-party-beneficiary claim. Byers, 237 P.3d at 1265.\\n\\n Woolman doesn’t allege that Liberty Mutual and Clemens Coal had a written\\n\\ncontract to procure insurance for his benefit. Rather, he asserts that they had an oral\\n\\nagreement, an implicit condition of which was that Liberty Mutual procure coverage\\n\\nto indemnify him from liability for black-lung-benefits claims. Woolman thus inverts\\n\\nthe ordinary standard of proof for third-party-beneficiary claims: rather than identify\\n\\nan express contractual provision that operates to his direct benefit, he contends that\\n\\nthe agreement to procure insurance for Clemens Coal implicitly guaranteed that the\\n\\npolicy would contain such a provision.7 Kansas law, however, doesn’t permit a third\\n\\nparty to enforce a contract on an unspoken promise of future beneficence. Instead,\\n\\nthe contract itself must explicitly and directly benefit the third party. See Fasse v.\\n\\nLower Heating & Air Conditioning, Inc., 736 P.2d 930, 932 (Kan. 1987).\\n\\n\\n 7\\n Woolman faults the district court for ignoring the distinction between the\\ncontract to procure insurance and the insurance policy itself. Yet the distinction is one\\nwithout a material difference. Woolman adduced no evidence at trial that any agreement\\n“clearly expressed” an intent to benefit him. Cf. Fasse, 736 P.2d at 932.\\n 14\\n\\f Regardless, even assuming Woolman could enforce an implicit agreement to\\n\\nprocure insurance for his benefit, there’s no evidence that the parties reached such an\\n\\nagreement. “[L]ess strict proof is required for an oral agreement to procure insurance\\n\\nthan for a contract of insurance.” Marshel, 634 P.2d at 142. Indeed, evidence that the\\n\\nparties expressly assented to all the agreement’s terms is unnecessary, as many terms\\n\\ncan be established by “[r]easonable implication.” Id. An implied contract to procure\\n\\ninsurance, however, requires that the client provide “sufficiently definite directions”\\n\\nfor the agent to “consummate the final insurance contract” and that the agent “know\\n\\nor have ready access to the information needed to procure the insurance or be able to\\n\\nimply the terms from prior dealings.” See Casas, 130 P.3d at 1210 (quoting Harris v.\\n\\nAlbrecht, 86 P.3d 728, 731, 732 (Utah 2004)).\\n\\n Woolman doesn’t seriously contend that either he or Worley gave Smith\\n\\n“sufficiently definite directions” with respect to the need to insure him against black-\\n\\nlung claims. To the contrary, Woolman testified at trial that he wasn’t involved in the\\n\\ntransaction and that he didn’t instruct Worley to obtain any specific coverages from\\n\\nSmith. Worley, in turn, testified that he didn’t request black-lung coverage because\\n\\nhe “assumed” it would be included. It is of no moment that Woolman and Worley’s\\n\\n“intent” was to procure insurance that would benefit Woolman, see Appellant’s\\n\\nOpening Br. at 13 (citing Appellant’s App. vol. 5 at 795:18–796:3, 801:5–6; id. vol. 6\\n\\nat 964:7–12), because they never communicated that intent to Smith.\\n\\n Similarly, there’s no evidence that Smith knew the “information needed to\\n\\nprocure” black-lung-claim coverage. See Casas, 130 P.3d at 1210. At trial, Smith\\n\\n 15\\n\\ftestified that she’d never sold insurance to a coal company and that she wasn’t aware\\n\\nof either the Act or black-lung disease when she sold the policy to Clemens Coal.\\n\\nWoolman replies on appeal that Smith must have been “well-apprised” of Clemens\\n\\nCoal’s coverage needs because Liberty Mutual specifically targeted the coal industry.\\n\\nOpening Br. at 51. Woolman’s only evidence for this assertion is a Liberty Mutual\\n\\nproforma in which Clemens Coal is listed as a “Prospect” and a box is checked for\\n\\n“Target Market.” Appellant’s App. vol. 7 at 1113. Yet an isolated checkmark, devoid\\n\\nof substantive elaboration, reveals nothing about Smith’s or Liberty Mutual’s\\n\\nknowledge of black-lung-claim coverage. And regardless, Smith testified that the\\n\\ncheckmark was likely inadvertent and may not have reflected an actual campaign to\\n\\ntarget coal companies.\\n\\n Woolman nevertheless argues that, by soliciting business from a “known coal\\n\\ncompany,” Liberty Mutual contemplated that the contract to procure insurance would\\n\\n“incorporate[] the ‘well-known’ standards” associated with such companies.\\n\\nAppellant’s Opening Br. at 22 (quoting Marshel, 634 P.2d at 141). Woolman asserts\\n\\nthat coverage shielding a coal company’s president from liability for black-lung-\\n\\ndisease benefits is a “well-known” standard because the Act has for decades imposed\\n\\npersonal liability for such benefits. Appellant’s Opening Br. at 22. Smith, however,\\n\\nwasn’t aware of this purported standard because she had no experience selling\\n\\ninsurance to a coal company. An agent contemplates the incorporation of standards\\n\\n\\n\\n\\n 16\\n\\fthat are known within the agent’s “field of expertise,” Marshel, 634 P.2d at 142, not\\n\\nstandards about which the agent has no knowledge.8\\n\\n Finally, there’s no evidence that Smith had “ready access to the information\\n\\nneeded to procure” black-lung-claim coverage. See Casas, 130 P.3d at 1210 (quoting\\n\\nHarris, 86 P.3d at 732). Woolman’s argument to the contrary relies on an implausible\\n\\nchain of inferences: that Smith would have asked to review, and Worley would have\\n\\ntendered, Clemens Coal’s expiring Hartford insurance policy; that the Hartford\\n\\npolicy, according to the IMA broker who procured it, would have contained a black-\\n\\nlung-claim endorsement; and that Smith, following her “standard” procedure, would\\n\\nhave duplicated that endorsement. See Appellant’s Opening Br. at 21–22 (quoting\\n\\nAppellant’s App. vol. 5 at 584:16–585:12, 587:1–5). The evidence adduced at trial\\n\\ndoesn’t support these inferences. Worley didn’t recall sharing the Hartford policy,\\n\\nand Smith didn’t recall receiving it; insufficient portions of the policy were produced\\n\\nto confirm its black-lung-claim coverage, and Hartford previously questioned such\\n\\ncoverage; and Smith testified that duplicating an expiring policy was just one of\\n\\nmany ways that she determined coverage. It is unreasonable to infer from this\\n\\nevidence that Worley shared, and Smith duplicated, an insurance policy with black-\\n\\n\\n\\n\\n 8\\n Woolman insists that the contract to procure insurance must have\\nincorporated well-known standards because his and Worley’s “intent was to be in\\ncompliance with the law in procuring insurance.” Appellant’s Opening Br. at 22. But\\nsuch subjective intent doesn’t somehow impute to Smith any knowledge of a standard\\nrequiring insurance for a coal company’s president—much less a reciprocal intent to\\nbenefit the president.\\n 17\\n\\flung-claim coverage—regardless of what the parties purportedly would have done\\n\\nand what the Hartford policy would have contained.\\n\\n Nonetheless, even assuming Smith followed her standard procedure and\\n\\nundertook to replicate the Hartford policy’s black-lung endorsement, that undertaking\\n\\nsuggests only that Smith intended to provide the same coverages that Clemens Coal\\n\\nenjoyed with its prior carrier, not that Smith intended to benefit Woolman personally.\\n\\nWoolman counters that, by undertaking to procure a black-lung endorsement, Smith\\n\\nnecessarily intended to directly benefit him “by eliminating his personal liability” for\\n\\nblack-lung claims. Appellant’s Reply Br. at 9.9 According to Woolman, it is\\n\\nsufficient that he would be an “identifiable beneficiary” of the endorsement. Id.10 Yet\\n\\njust because the endorsement would operate to Woolman’s benefit doesn’t mean that\\n\\nSmith intended to benefit Woolman. At most, the benefit would be incidental to and\\n\\n\\n\\n 9\\n Woolman stresses that the generic black-lung endorsement, set forth in 20\\nC.F.R. § 726.203(a), references the Act’s personal-liability provisions, including\\nthose applicable to a coal company’s president, see, e.g., 30 U.S.C. § 933(d). At\\nmost, this reference alerts the contracting parties that the black-lung endorsement\\nwould shield the president from personal liability. But “[k]nowledge that a contract\\nwill benefit a third party is not intent to benefit the third party.” Noller v. GMC Truck\\n& Coach Div., 772 P.2d 271, 275 (Kan. 1989).\\n 10\\n Woolman goes so far as to suggest that, because the purpose of insurance is\\nto “minimize a risk,” anyone “who would realize the mitigation or elimination of the\\nrisk” is an insurance policy’s intended beneficiary. Appellant’s Reply Br. at 8. This\\nargument ignores the “intent” requirement entirely, enshrining a per se rule that\\nwould bestow third-party-beneficiary status on anyone whose risk an insurance\\ncontract happens to mitigate. A third-party beneficiary, however, is “one who the\\ncontracting parties intended should receive a direct benefit from the contract,” see\\nMartin v. Edwards, 548 P.2d 779, 784–85 (Kan. 1976), not one who happens to\\nbenefit from the contract, see In re Shevling, 97 P.3d at 1040.\\n 18\\n\\fnot the direct object of the endorsement, the primary purpose of which is to insure\\n\\nminers who contract black-lung disease.\\n\\n In short, there’s no evidence that the parties intended—impliedly or\\n\\notherwise—to procure black-lung-claim insurance for Woolman’s direct benefit.\\n\\nClemens Coal didn’t give Liberty Mutual any directions regarding a need to procure\\n\\nsuch coverage, and Liberty Mutual didn’t already know of or have access to the\\n\\ninformation needed to procure it. Even Woolman’s “standard procedure” chain of\\n\\ninferences suggests, at most, that Liberty Mutual intended to procure black-lung-\\n\\nclaim coverage for Clemens Coal as a company. Although Liberty Mutual may have\\n\\nowed Clemens Coal a duty to “exercise care” in that undertaking, it doesn’t follow\\n\\nthat it owed a separate duty to Woolman in his personal capacity.\\n\\n C. Tortious Breach\\n\\n Woolman devotes much of his time fighting an uphill battle on the breach-of-\\n\\ncontract front while leaving his tort theory relatively underdeveloped. His argument\\n\\nthat Liberty Mutual owed him a duty sounding in tort reduces to the proposition that,\\n\\nas Clemens Coal’s president, he is a foreseeable plaintiff because the Act makes him\\n\\npersonally liable for uninsured black-lung benefits. He further contends that the\\n\\nprobability of harm—i.e., that he would be held personally liable—is foreseeable\\n\\nbecause “the risk is delineated by law[] and claims for black lung disease are\\n\\ncommon among coal companies.” Appellant’s Reply Br. at 10.\\n\\n This analysis misses the point. Regardless of whether Woolman is a\\n\\nforeseeable plaintiff under an ordinary negligence analysis, his foreseeability, alone,\\n\\n 19\\n\\fdoesn’t give rise to a duty to exercise care in procuring insurance. The Court of\\n\\nAppeals of Kansas explained in Marshel that the duty arises in tort as “part of the\\n\\nfiduciary duty owed the client by reason of the principal-agent relationship arising\\n\\nout of the undertaking” to procure insurance. 634 P.2d at 142. The Court of Appeals\\n\\nhas since read Marshel as holding that “a tort duty only arises when there is a\\n\\ncontractual undertaking by the agent” for the client. Duncan v. Janosik, Inc., 203\\n\\nP.3d 88 (Kan. Ct. App. 2009) (unpublished table decision). As a result, “when there\\n\\nis no contract duty between the agent and client, . . . there is no basis from which a\\n\\ntort duty may arise.” Id. Our conclusion that Liberty Mutual didn’t owe Woolman a\\n\\ncontract duty thus forecloses the possibility that it owed him a duty sounding in tort.\\n\\nII. The Judicial Estoppel Doctrine\\n\\n In a last-ditch attempt to salvage his breach-of-duty counterclaim, Woolman\\n\\nasserts that Liberty Mutual should be judicially estopped from disputing that it owed\\n\\nhim a duty because it took inconsistent positions on the issue in the district court and\\n\\nobtained an unfair advantage as a result. Woolman initially asserted judicial estoppel\\n\\nin his post-trial motion to alter or amend the district court’s judgment. Because\\n\\nWoolman could have, but did not, raise the issue before judgment, the district court\\n\\ndeclined to alter or amend its judgment on that basis. On appeal, Woolman argues\\n\\nthat this decision “resulted in manifest injustice and was clear error.” Appellant’s\\n\\nOpening Br. at 29.\\n\\n Judicial estoppel “is an equitable doctrine invoked by a court at its discretion.”\\n\\nNew Hampshire v. Maine, 532 U.S. 742, 750 (2001) (quoting Russell v. Rolfs, 893\\n\\n 20\\n\\fF.2d 1033, 1037 (9th Cir. 1990)). We therefore review the district court’s judicial-\\n\\nestoppel decision for abuse of discretion. Bradford v. Wiggins, 516 F.3d 1189, 1193\\n\\n(10th Cir. 2008). “A court abuses its discretion only ‘when it makes a clear error of\\n\\njudgment, exceeds the bounds of permissible choice, or when its decision is arbitrary,\\n\\ncapricious or whimsical, or results in a manifestly unreasonable judgment.’” Eastman\\n\\nv. Union Pac. R.R., 493 F.3d 1151, 1156 (10th Cir. 2007) (quoting United States v.\\n\\nNickl, 427 F.3d 1286, 1300 (10th Cir. 2005)).\\n\\n The judicial-estoppel doctrine’s purpose is to “prevent improper use of judicial\\n\\nmachinery” by parties attempting to “deliberately chang[e] positions according to the\\n\\nexigencies of the moment.” Queen v. TA Operating, LLC, 734 F.3d 1081, 1087 (10th\\n\\nCir. 2013) (quoting New Hampshire, 532 U.S. at 749–50). The doctrine’s\\n\\napplicability generally turns on whether a party’s later position is “clearly\\n\\ninconsistent” with its former position; whether the party successfully persuaded the\\n\\ncourt to accept its previous position, such that the court’s later acceptance of an\\n\\ninconsistent position would “create ‘the perception that either the first or the second\\n\\ncourt was misled’”; and whether the party would derive an unfair advantage unless\\n\\nestopped. New Hampshire, 532 U.S. at 750–51 (internal quotation marks omitted)\\n\\n(first quoting United States v. Hook, 195 F.3d 299, 306 (7th Cir. 1999); then quoting\\n\\nEdwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir. 1982)). The analysis is\\n\\nultimately fact-specific, however, and requires no “inflexible prerequisites.” Id. at\\n\\n751.\\n\\n\\n\\n 21\\n\\f Woolman argues that judicial estoppel is warranted in this case for three\\n\\nprimary reasons. He asserts, first, that Liberty Mutual waived its right to dispute that\\n\\nit owed him a duty when it admitted in its answer to his counterclaim that he was the\\n\\n“real party in interest” to the claim. Appellant’s Opening Br. at 29–30. Second, he\\n\\ncontends that Liberty Mutual took “contrary position[s]” on whether it owed him a\\n\\nduty and on whether he must prove a duty independent of Liberty Mutual’s\\n\\nobligations to Clemens Coal. Id. at 30. And third, he contends that Liberty Mutual\\n\\ngained an “unfair advantage” by neglecting to contest the existence of a duty until\\n\\nlate in the litigation. Appellant’s Reply Br. at 14. All three arguments fail.\\n\\n First, Liberty Mutual’s admission that Woolman is the real party in interest to\\n\\nassert the breach-of-duty counterclaim has no bearing on the claim’s merits. The real\\n\\nparty in interest is simply “the person who possesses the right sought to be enforced.”\\n\\nO’Donnell v. Fletcher, 681 P.2d 1074, 1076 (Kan. Ct. App. 1984). An entitlement to\\n\\nenforce a right, however, “neither enlarges nor restricts a party’s substantive right to\\n\\nrecover in a particular action.” Id. at 1077. Hence, even if Woolman is the “real party\\n\\nin interest” to the counterclaim, he still must demonstrate a substantive right to\\n\\nrecover on the claim, including by proving that Liberty Mutual owed him a duty.\\n\\nLiberty Mutual didn’t somehow waive that obligation.11\\n\\n\\n\\n 11\\n Woolman adds that Liberty Mutual failed to timely raise, and thus waived,\\nany “objection based on [an] alleged failure to have the action prosecuted in the name\\nof the real party in interest.” Appellant’s Opening Br. at 30 (quoting O’Donnell, 681\\nP.2d at 1077). This is a strawman, because Liberty Mutual doesn’t purport to raise\\nsuch an objection. Liberty Mutual disputes that it owed Woolman a duty, not that\\n 22\\n\\f Second, Liberty Mutual never took a contrary position on the existence of a\\n\\nduty. Woolman argues that Liberty Mutual initially “assumed” it owed him a duty,\\n\\nAppellant’s Opening Br. at 31, citing Liberty Mutual’s assertion in the pretrial order\\n\\nthat it “did not breach any assumed duty to Woolman in the issuance of the Liberty\\n\\nMutual Policy,” Appellant’s App. vol. 1 at 96. Yet “assumed,” in this context, is an\\n\\nadjective meaning “not true” or “supposed.” It is not, as Woolman suggests, a\\n\\ntransitive verb denoting an “acceptance” or “undertaking” of a position. That is,\\n\\nLiberty Mutual didn’t accept that it owed Woolman a duty but rather asserted that it\\n\\ndidn’t breach a nonexistent duty to him. Liberty Mutual’s later position that it didn’t\\n\\nowe Woolman a duty isn’t inconsistent with this earlier position. See New\\n\\nHampshire, 532 U.S. at 750.12\\n\\n Liberty Mutual also never took a contrary position on whether Woolman must\\n\\nprove that it owed him a duty independent of any duty that it owed to Clemens Coal.\\n\\nWoolman stresses that Liberty Mutual didn’t make the argument that he must prove\\n\\nan independent duty until after the close of his case-in-chief. That Liberty Mutual\\n\\nwaited to raise the argument, however, doesn’t mean it ever adopted a contrary\\n\\n\\nWoolman has the capacity to assert the breach-of-duty counterclaim. Woolman\\nconflates these distinct concepts.\\n 12\\n As further evidence that Liberty Mutual initially admitted it owed him duty,\\nWoolman notes that Liberty Mutual failed to assert absence of a duty “as a defense”\\nin the pretrial order. Appellant’s Opening Br. at 31. He emphasizes that Liberty\\nMutual asserted a defense to the breach element of his counterclaim but didn’t\\nspecifically contest the duty element. Yet Liberty Mutual’s silence on the duty\\nelement isn’t an admission as to that element, much less a “clearly inconsistent”\\nposition.\\n 23\\n\\fposition. Indeed, Woolman’s only evidence of inconsistency is that Liberty Mutual\\n\\ndidn’t raise the independent-duty argument in its summary judgment briefing but\\n\\ninstead focused solely on whether it breached a duty to Clemens Coal. Yet Liberty\\n\\nMutual’s omission of the argument doesn’t constitute an affirmative position to the\\n\\ncontrary. Cf. Appellant’s Reply Br. at 14 (reading the omission as Liberty Mutual\\n\\ntaking the view that “Woolman need not prove a duty independent of that owed to\\n\\nClemens Coal”).13\\n\\n Third, and last, Liberty Mutual didn’t obtain an “unfair advantage” by failing\\n\\nto contest that it owed Woolman a duty until its motion for judgment as a matter of\\n\\nlaw. See New Hampshire, 532 U.S. at 751. Woolman reasons that he “had no\\n\\nexpectation [duty] was an issue to be tried,” because Liberty Mutual didn’t dispute\\n\\nthat it owed him a duty in its answer, in the pretrial order, or in its summary-\\n\\njudgment briefing. Appellant’s Opening Br. at 30. This is tantamount to arguing that\\n\\na party needn’t prove an element of its claim unless the other party disputes it. Yet\\n\\nWoolman had the burden of proving that a legal duty existed as part of his prima\\n\\nfacie case, regardless of whether Liberty Mutual raised the issue. Accordingly,\\n\\nLiberty Mutual’s initial failure to contest the issue didn’t prejudice Woolman.\\n\\n Woolman’s evidence, in brief, falls short of demonstrating entitlement to\\n\\njudicial estoppel—much less that the district court abused its discretion in refusing to\\n\\n\\n\\n 13\\n Because Liberty Mutual didn’t espouse inconsistent positions on the\\nindependent-duty question, we needn’t address whether Liberty Mutual persuaded the\\ndistrict court to adopt an earlier, contrary position.\\n 24\\n\\festop Liberty Mutual from contesting that it owed Woolman a duty. We therefore\\n\\ndecline to disturb the district court’s judgment.\\n\\nIII. Woolman’s Estoppel Defenses\\n\\n Woolman advances several arguments in support of his entitlement to\\n\\nequitable and promissory estoppel. As a threshold issue, he contends that the district\\n\\ncourt erred in declining to submit to the jury a series of interrogatories that related to\\n\\nhis estoppel defenses. He then argues that the district court, in resolving his estoppel\\n\\ndefenses, failed to bind itself to factual findings implicit in the jury’s verdict in the\\n\\ncounterclaim trial. Next, he asserts that the district court misapplied the law to his\\n\\nestoppel defenses. And finally, he contends that the district court erred in failing to\\n\\nuse estoppel to expand the Liberty Mutual policy’s coverages beyond its terms.\\n\\n A. The Special Interrogatories\\n\\n Before trial, Woolman asked the district court to submit his estoppel defenses\\n\\nto the jury as well as several special interrogatories regarding the defenses. The court\\n\\ndenied both requests, and instead limited the trial to the breach-of-duty counterclaim.\\n\\nOn appeal, Woolman contends that the court erred in thus limiting the trial and that,\\n\\ninstead, it should have asked the jury to make factual findings that would have\\n\\ncontrolled the court’s resolution of the estoppel defenses. He avers that the absence\\n\\nof such explicit guidance from the jury’s interrogatory answers resulted in the court\\n\\nmaking findings in its estoppel ruling that were contrary to findings implicit in the\\n\\njury’s verdict.\\n\\n\\n\\n 25\\n\\f We review de novo whether, “as a whole, the district court’s jury instructions\\n\\ncorrectly stated the governing law and provided the jury with an ample understanding\\n\\nof the issues and applicable standards.” Martinez v. Caterpillar, Inc., 572 F.3d 1129,\\n\\n1132 (10th Cir. 2009) (quoting World Wide Ass’n of Specialty Programs v. Pure,\\n\\nInc., 450 F.3d 1132, 1139 (10th Cir. 2006)). But we review a decision whether to\\n\\ngive a particular instruction only for abuse of discretion. Webb v. ABF Freight Sys.,\\n\\nInc., 155 F.3d 1230, 1248 (10th Cir. 1998). If the instructions “as a whole adequately\\n\\nstate[] the law, the refusal to give a particular requested instruction is not an abuse of\\n\\ndiscretion.” United States v. Suntar Roofing, Inc., 897 F.2d 469, 473 (10th Cir.\\n\\n1990).\\n\\n Here, the jury instructions as a whole adequately stated the governing law\\n\\nregarding Kansas’ exercise-care duty. The district court didn’t abuse its discretion in\\n\\ndeclining to further instruct the jury about defenses not at issue in the trial. The court\\n\\nspecifically bifurcated the litigation, submitting Woolman’s legal counterclaim to the\\n\\njury while reserving for itself resolution of Woolman’s equitable defenses. Given this\\n\\nbifurcation, an instruction on equitable defenses not at issue in the jury trial risked\\n\\nmisleading the jury in its “understanding of the issues and law applicable to the case\\n\\nbefore it.” United States v. Laughlin, 26 F.3d 1523, 1528 (10th Cir. 1994). The court\\n\\nproperly declined to obfuscate the issues in this manner.14\\n\\n\\n 14\\n To the extent Woolman challenges the district court’s refusal to submit the\\nestoppel defenses to the jury, that argument also fails. “Entitlement to a jury trial is a\\nquestion of law which we review de novo.” Bowdry v. United Airlines, Inc., 58 F.3d\\n1483, 1489 (10th Cir. 1995). Unless a statute speaks to a jury-trial right, we look to\\n 26\\n\\f B. The Jury’s “Implicit Findings”\\n\\n Woolman stakes much of his estoppel argument on the assertion that the\\n\\ndistrict court, in ruling on his estoppel defenses, erred in failing to bind itself to the\\n\\n“implicit findings” that the jury made regarding his breach-of-duty counterclaim and\\n\\nin failing to consider “alternative factual findings” that the jury could have made to\\n\\nsupport its verdict. See Appellant’s Opening Br. at 34. Woolman insists that when, as\\n\\nhere, legal and equitable claims are “commingled,” the Seventh Amendment\\n\\nprohibits a court from “reaching factual conclusions contrary to those explicitly or\\n\\nimplicitly reached by the jury.” Id. at 33. Liberty Mutual counters that a court must\\n\\nbind itself only to the jury’s findings on “common questions of fact” and argues that,\\n\\nin this case, no common factual issues bound the court. Appellee’s Br. at 26–27\\n\\n(quoting Colo. Visionary Acad. v. Medtronic, Inc., 397 F.3d 867, 875 (10th Cir.\\n\\n2005)).\\n\\n In an appeal from a bench trial, we review the district court’s factual findings\\n\\nfor clear error. Keys Youth Servs., Inc. v. City of Olathe, 248 F.3d 1267, 1274 (10th\\n\\nCir. 2001). Where the case also involves a jury trial, we must “take into account the\\n\\nbinding effect” on the trial court of the jury’s findings as to issues of fact common to\\n\\nboth the legal and the equitable claims. Smith v. Diffee Ford–Lincoln–Mercury, Inc.,\\n\\n\\n\\nthe Seventh Amendment to determine entitlement to a jury trial. See Tull v. United\\nStates, 481 U.S. 412, 417 & n.3 (1987). Though the Seventh Amendment guarantees\\nthe right to a jury trial in any suit involving “legal rights,” this guarantee doesn’t\\nextend to “equitable rights.” Bowdry, 58 F.3d at 1489. Hence, Woolman had no\\nentitlement to a jury trial on his equitable defenses.\\n 27\\n\\f298 F.3d 955, 965 (10th Cir. 2002). This ensures that litigants’ Seventh Amendment\\n\\njury-trial rights aren’t rendered meaningless on such common factual issues. See id.\\n\\n(quoting Ag Servs. of Am. v. Nielsen, 231 F.3d 726, 730 (10th Cir. 2000)). The jury’s\\n\\nfindings, however, bind the court only to the extent that “fact issues central to a claim\\n\\nare decided by a jury upon evidence that would justify its conclusion.” Brinkman v.\\n\\nDep’t of Corrections, 21 F.3d 370, 372–73 (10th Cir. 1994).\\n\\n Here, the parties’ protracted focus on the jury’s implicit findings is largely\\n\\nacademic, because no factual findings bound the district court in its disposition of\\n\\nWoolman’s estoppel defenses. Our previous discussion makes clear that the jury’s\\n\\nverdict for Woolman on his counterclaim lacked competent “evidence that would\\n\\njustify its conclusion.” See id. at 372. And regardless, before issuing its estoppel\\n\\ndecision, the district court granted Liberty Mutual’s motion for judgment as a matter\\n\\nof law and set aside the verdict—thus nullifying any factual findings explicit or\\n\\nimplicit in the verdict. See Appellant’s App. vol. 2 at 340 (“The court sets aside the\\n\\njury’s verdict and award . . . .”). The jury’s factual findings, of course, couldn’t\\n\\nconstrain the court if the verdict wasn’t intact. Cf. Nielsen, 231 F.3d at 731\\n\\n(concluding that, because the trial court “left intact the jury’s verdict and its explicit\\n\\nfindings and those necessarily implicit from the verdict,” those findings bound the\\n\\ncourt).\\n\\n Because the district court properly set aside the verdict as contrary to the\\n\\nevidence under Federal Rule of Civil Procedure 50, we needn’t inquire further\\n\\nwhether the court made factual findings inconsistent with the jury’s implicit\\n\\n 28\\n\\ffindings.15 We therefore turn to the court’s substantive analysis of Woolman’s\\n\\nestoppel defenses.\\n\\n C. The Substantive Law of Estoppel\\n\\n Woolman protests the district court’s purported misapplication of the law in\\n\\ndisposing of his equitable- and promissory-estoppel defenses. In an appeal from a\\n\\nbench trial, we review the district court’s conclusions of law de novo. Sanpete Water\\n\\nConservancy Dist. v. Carbon Water Conservancy Dist., 226 F.3d 1170, 1177–78\\n\\n(10th Cir. 2000). We continue to review the court’s factual findings for clear error.\\n\\nId. at 1177.\\n\\n A party asserting equitable estoppel must show that another party, “by its acts,\\n\\nrepresentations, admissions, or silence when it had a duty to speak, induced [the first\\n\\nparty] to believe certain facts existed,” and also that the first party “rightfully relied\\n\\n\\n\\n 15\\n Woolman would have us conclude that the jury made a series of findings in\\nreaching its verdict, but as Woolman recites them, these findings are implausible and\\nignore mountains of evidence to the contrary. According to Woolman, the findings\\ninclude that Worley gave Smith a copy of the Hartford policy; that the policy\\ncontained a black-lung endorsement; that Smith followed her “standard” procedure to\\ncopy the endorsement; and that Clemens Coal didn’t have actual notice that the\\nLiberty Mutual policy differed in its coverages from policies offered through IMA.\\nNone of these findings have a reasonable basis in the record—and thus, the jury\\ncouldn’t have implied them in its verdict.\\n Woolman’s misguided analysis relies on the flawed notion that the jury could\\nnot have reached its verdict without implying these findings. But a simpler rationale\\nfor the verdict accords with the weight of the evidence and doesn’t rely on a complex\\nweb of unlikely implicit findings: in determining that Liberty Mutual breached a duty\\nto Woolman, the jury concluded that Liberty Mutual negligently failed to familiarize\\nitself with and procure the “proper coverage” that coal companies like Clemens Coal\\nrequire. This rationale is entirely consistent with the district court’s resolution of\\nWoolman’s estoppel defenses.\\n 29\\n\\fand acted upon such belief.” Mut. Life Ins. Co. of N.Y. v. Bernasek, 682 P.2d 667,\\n\\n730 (Kan. 1984) (quoting Cosgrove v. Young, 642 P.2d 75, 84 (Kan. 1982)).\\n\\nEquitable estoppel therefore “has two fundamental elements: misrepresentation and\\n\\ndetrimental reliance.” United Cities Gas Co. v. Brock Expl. Co., 995 F. Supp. 1284,\\n\\n1297 (D. Kan. 1998). Promissory estoppel similarly requires a representation\\n\\ninducing reliance; the difference being that, for promissory estoppel, “the\\n\\nrepresentation is promissory rather than to an existing fact.” Marker, 506 P.2d at\\n\\n1170.16\\n\\n Here, the district court found no evidence that Liberty Mutual represented or\\n\\npromised to procure black-lung coverage. To prove the representation element,\\n\\nWoolman falls back on the jury’s “implicit finding[]” that Smith “promise[d] to\\n\\nduplicate Clemens Coal’s previous coverage in conformity with her standard\\n\\nprocedure.” Appellant’s Opening Br. at 43. Our rejection of the “implicit findings”\\n\\nthesis above predetermines our rejection of it here. See discussion, supra Section\\n\\nIII.B. Furthermore, even drawing all reasonable inferences in Woolman’s favor,\\n\\nthere’s no evidence that Smith promised to duplicate coverages or that she even\\n\\ninformed Worley that her “standard” procedure involved duplication. Nevertheless,\\n\\neven if Smith promised to duplicate the Hartford policy’s coverages, there’s no\\n\\nevidence that she promised to duplicate black-lung coverage. The suggestion that\\n\\nSmith made such a promise presupposes that she received a copy of the Hartford\\n\\n\\n 16\\n The promissory “representation” also needn’t be a “misrepresentation.” See\\nBouton v. Byers, 321 P.3d 780, 792 (Kan. Ct. App. 2014) (clarifying this distinction).\\n 30\\n\\fpolicy and that the policy had black-lung coverage to duplicate—two facts with no\\n\\nbasis in the record.\\n\\n Lacking evidence of a promise to duplicate coverage, Woolman argues that\\n\\nSmith “had a duty to inform Clemens Coal if she could not duplicate coverage” and\\n\\nthat Smith’s silence in the face of that duty induced Clemens Coal to believe that she\\n\\nundertook to duplicate coverage. Appellant’s Opening Br. at 43. This inverts the\\n\\nanalysis. Absent evidence that Clemens Coal asked Smith to duplicate coverage or\\n\\nthat Smith promised to do so, Smith’s “silence” represented nothing. Clemens Coal\\n\\ncouldn’t construe such silence as a promise that Smith would duplicate coverage if\\n\\nthere was no baseline expectation that Smith would duplicate coverage. Accordingly,\\n\\nSmith had no “duty” to inform Clemens Coal that she couldn’t duplicate coverage.\\n\\nThe necessary predicate to an obligation to correct an earlier representation is, after\\n\\nall, the existence of an earlier representation. Woolman’s estoppel defenses fail on\\n\\nthe first element. See Ram Co. v. Estate of Kobbeman, 696 P.2d 936, 944 (Kan. 1985)\\n\\n(stating that an estoppel claim fails if any essential element “is lacking or is not\\n\\nsatisfactorily proved”) (quoting 28 Am. Jur. 2d Estoppel & Waiver §§ 35–36 (1964)).\\n\\n Assuming Woolman could prove that Smith promised to duplicate coverage,\\n\\nhe nevertheless fails to show that he reasonably relied on that promise. The district\\n\\ncourt found that any reliance wasn’t reasonable, in part, because Woolman failed to\\n\\nread the insurance policy, which unambiguously excluded coverage for black-lung\\n\\nclaims. On appeal, Woolman doesn’t dispute that he didn’t read the policy but asserts\\n\\nthat he had a duty to read only the “application for insurance.” Appellant’s Opening\\n\\n 31\\n\\fBr. at 44. He contends that “an insured has a right to assume the policy provides the\\n\\ncoverage requested—here, the same coverages as The Hartford policy . . . .” Id. Yet\\n\\nWoolman doesn’t even claim that he read the insurance application. Any purported\\n\\ndistinction between the policy and the application is thus immaterial, because\\n\\nWoolman cannot credibly claim reliance on either document. See Chism v. Protective\\n\\nLife Ins. Co., 234 P.3d 780, 792 (Kan. 2010) (duty to read application); Jones v.\\n\\nReliable Sec. Incorporation, Inc., 28 P.3d 1051, 1062 (Kan. Ct. App. 2001) (duty to\\n\\nread policy).\\n\\n Regardless, the parties failed to produce the application at trial and could only\\n\\nspeculate about its contents.17 At most, Worley—the individual who submitted the\\n\\napplication—testified that he would not have requested black-lung coverage because\\n\\nhe “assumed” that it would be included.18 Yet, even if Worley did request black-lung\\n\\ncoverage, it was still unreasonable for Woolman to assume that the resulting policy\\n\\nconformed to Worley’s request. As the district court noted, at $43,000 cheaper than\\n\\ncomparable policies offered through IMA, the policy’s bargain-bin price tag was a\\n\\nred flag that should have prompted further inquiry into the policy’s coverages. IMA’s\\n\\naccount representative for Clemens Coal even testified that he “absolutely” would\\n\\nhave advised Clemens Coal to investigate the price discrepancy. Yet no one\\n\\n\\n 17\\n Woolman’s reliance on the jury’s “implicit findings” to supply the\\napplication’s missing terms is no more enlightening here than with the policy itself.\\n 18\\n To the extent Woolman argues that Worley requested black-lung coverage\\nby tendering, and asking Smith to duplicate, a prior policy with black-lung coverage,\\nthere’s no evidence for either proposition.\\n 32\\n\\finvestigated further, and instead Clemens Coal selected the policy because it was\\n\\ncheaper than the alternatives. This willful blindness to the policy’s coverages vitiates\\n\\nthe reasonableness of any reliance.\\n\\n In short, the district court correctly rejected Woolman’s estoppel defenses\\n\\nbecause there’s no evidence either that Liberty Mutual represented it would procure\\n\\nblack-lung coverage or that Woolman reasonably relied on such a representation.19\\n\\nWe see no clear error in the district court’s factual findings, and our de novo review\\n\\nof the court’s legal analysis compels the same result.\\n\\n D. Expansion of Coverage\\n\\n The parties stipulated before trial that the Liberty Mutual policy excludes\\n\\ncoverage for black-lung-disease claims. Woolman urged the district court to use an\\n\\nestoppel theory to expand the policy’s terms to cover such claims, but the district\\n\\ncourt found no compelling reason to expand coverage in this case. Woolman now\\n\\nembarks on a protracted critique of the district court’s refusal to expand coverage.\\n\\n\\n\\n 19\\n Having found that Woolman’s estoppel defenses failed on the representation\\nand reliance elements, the district court had no occasion to determine whether justice\\nrequired it to enforce a promise. On appeal, Woolman nevertheless urges us to estop\\nLiberty Mutual from denying black-lung coverage because it would be “substantially\\nunjust” to empower an insurance company to “deny coverage that a jury determined\\nshould have been provided,” thereby exposing him to personal liability for Spencer’s\\nblack-lung claim. Appellant’s Opening Br. at 47. Yet Woolman’s success on his\\nbreach-of-duty claim doesn’t automatically entitle him to relief on his estoppel\\ndefenses, especially where, as here, the jury’s determination lacked a legally\\nsufficient evidentiary basis. Nor does substantial injustice automatically flow from\\nthe risk of incurring liability. The absurd implication of Woolman’s entreaty is that\\n“injustice” would befall every litigant who happens to be sued. We decline to\\nsanction such a theory.\\n 33\\n\\f Kansas recognizes the general rule that estoppel “cannot be used to expand . . .\\n\\ncoverage” beyond an insurance contract’s terms. W. Food Prods. Co. v. United States\\n\\nFire Ins. Co., 699 P.2d 579, 584 (Kan. Ct. App. 1985). Courts eschew this practice\\n\\nbecause it risks “creating coverage where none has been contracted for.” Aselco, Inc.\\n\\nv. Hartford Ins. Grp., 21 P.3d 1011, 1020 (Kan. Ct. App. 2001) (quoting Johnson v.\\n\\nStudyvin, 828 F. Supp. 877, 886 (D. Kan. 1993)). Nonetheless, the Supreme Court of\\n\\nKansas has, on one occasion, affirmed a court’s use of estoppel to expand coverage.\\n\\nHeinson v. Porter, 772 P.2d 778, 783 (Kan. 1989), overruled on other grounds by\\n\\nGlenn v. Fleming, 799 P.2d 79, 81 (Kan. 1990). Although the court in Heinson\\n\\napplied a multi-factor, totality-of-the-circumstances test,20 a panel of the Court of\\n\\nAppeals of Kansas has since read the decision as sanctioning expansion of coverage\\n\\nonly when there are affirmative representations and acts of coverage and when the\\n\\npolicy doesn’t “explicitly exclude the incident at issue.” See Russell v. Farmers Ins.\\n\\nCo., 163 P.3d 1266, 1269 (Kan. Ct. App. 2007).\\n\\n\\n\\n\\n 20\\n In Heinson, a homeowner’s insurance policy excluded coverage for injuries\\nor damages arising out of “business pursuits.” 772 P.2d at 779–80. The insured\\noperated a day care out of her home when a child under her care sustained severe\\ninjuries. Though the Supreme Court of Kansas concluded that the day care was a\\n“business pursuit,” it nonetheless held that the insurer was estopped from denying\\ncoverage for the child’s injuries. The court cited several facts for this holding,\\nincluding that the insurer knew the insured was operating a day-care business out of\\nher home; that the insurer’s agent told the insured that the policy would cover the\\nbusiness; that the insured’s application for insurance disclosed that she operated the\\nbusiness; that the insurer didn’t express any concern over the business to the insured;\\nand that the insurance policy didn’t expressly exclude day-care activity. See id. at\\n783.\\n 34\\n\\f The district court in this case, relying on Russell, found it dispositive that\\n\\nLiberty Mutual made no affirmative representations or acts as to black-lung-claim\\n\\ncoverage and that the resulting policy explicitly excluded coverage for such claims.\\n\\nWoolman protests that the court erred in giving dispositive weight to these two\\n\\nfactors, arguing that, under Heinson’s totality-of-the-circumstances test, “no factor,\\n\\nor two, is dispositive.” Appellant’s Reply Br. at 22. Yet many of the circumstances\\n\\nthat Woolman faults the district court for ignoring are untethered to the record. These\\n\\ninclude the chain of inferences about Smith using her “standard” procedure to\\n\\nduplicate coverages, as well as the assertion that Liberty Mutual knew of Clemens\\n\\nCoal’s insurance needs because it was “targeting” the coal industry. Appellant’s\\n\\nOpening Br. at 51. Though Heinson counsels a multi-factor analysis, it doesn’t\\n\\ncompel any consideration of factors that contradict the evidence.\\n\\n In any case, it defies logic to use an estoppel theory to expand coverage by\\n\\nconsidering all circumstances except the touchstone element of an estoppel claim: a\\n\\nrepresentation inducing reliance. We hesitate to create by judicial fiat an obligation\\n\\nthat an insurer never induced an insured to believe existed. Similarly, that the policy\\n\\nexplicitly excluded the disputed coverage, and that the insured acquiesced to the\\n\\nexclusion by purchasing the policy, strongly counsels against expanding coverage\\n\\nbeyond the agreed terms. Even if these two factors—representation and exclusion—\\n\\n\\n\\n\\n 35\\n\\faren’t dispositive, they warrant substantial weight in the analysis. Certainly, the\\n\\ndistrict court didn’t abuse its discretion in emphasizing these factors.21\\n\\n Woolman tries to surmount this assessment by contending that public policy\\n\\nrequires an expansion of coverage to “preserve[] the rights” to which he is entitled.\\n\\nAppellant’s Reply Br. at 22. Woolman insists that expansion would simply “hold\\n\\nLiberty Mutual accountable for that which it said it would do,” i.e., procure black-\\n\\nlung coverage for his benefit. Id. at 23. Liberty Mutual, however, never undertook to\\n\\ninsure Woolman directly or to procure insurance for his benefit. Accordingly, rather\\n\\nthan preserve a preexisting right, Woolman is impermissibly attempting to acquire a\\n\\nnew one. Public policy doesn’t favor rewarding insureds who neglect to request\\n\\ncoverage, then years later claim that the insurer wrongfully failed to procure such\\n\\ncoverage when the risk actually materializes.\\n\\n Woolman posits a second public-policy rationale for expanding coverage: that\\n\\nhe “already possessed” a right to black-lung coverage because federal regulations\\n\\nrequire coal companies to acquire insurance with such coverage. Appellant’s Opening\\n\\nBr. at 55. But the regulations on which Woolman relies define a coal mine operator’s\\n\\nduty to obtain coverage. See 20 C.F.R. § 726.1 (“[T]he Federal Coal Mine Health and\\n\\n\\n\\n 21\\n Neither party suggests a standard for our review of decisions whether to\\nexpand insurance coverage. We generally review a court’s assessment of disparate,\\ncase-specific factors under the deferential abuse-of-discretion standard. See, e.g.,\\nMocek v. City of Albuquerque, 813 F.3d 912, 932 (10th Cir. 2015); Surefoot LC v.\\nSure Foot Corp., 531 F.3d 1236, 1240 (10th Cir. 2008). We need not decide the\\nissue, however, because we would affirm the district court’s assessment of the\\ncircumstances relevant to expanding coverage under even a de novo standard.\\n 36\\n\\fSafety Act . . . requires each coal mine operator . . . to secure the payment of [black-\\n\\nlung] benefits . . . .”); 30 U.S.C. § 933(a) (“[E]ach operator of a coal mine . . . shall\\n\\nsecure the payment of benefits . . . .”); see also 20 C.F.R. § 726.2(a) (“[Part 726]\\n\\nprovides rules directing and controlling the circumstances under which a coal mine\\n\\noperator shall fulfill his insurance obligations under the Act.”). The regulations\\n\\ncontain no similar provisions imposing an independent duty on an insurer to include\\n\\nblack-lung coverage in every policy issued to a coal company. There are no\\n\\ncompelling public-policy reasons to ignore the regulations’ plain language and shift\\n\\nfrom the operator to the insurance company the burden to conform insurance policies\\n\\nto the Act.\\n\\n Having considered the totality of the circumstances, we conclude that the\\n\\ndistrict court didn’t err in declining Woolman’s extraordinary request to expand the\\n\\ncoverages in the Liberty Mutual policy. Liberty Mutual never represented it would\\n\\nprocure the coverage that Woolman now seeks, and the policy itself clearly excludes\\n\\nsuch coverage. No other compelling consideration justifies rewriting the agreement—\\n\\ntwenty years later—to Woolman’s liking.\\n\\n CONCLUSION\\n\\n For the above reasons, we affirm the district court.\\n\\n\\n\\n\\n 37\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4358500/\", \"author_raw\": \"PHILLIPS, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"TYMKOVICH"},"judge2":{"kind":"string","value":"HOLMES"},"judge3":{"kind":"string","value":"PHILLIPS"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4581247/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: LIBERTY MUTUAL FIRE INSURANCE COMPANY, Plaintiff Counter Defendant - Appellee, v. Dennis WOOLMAN, Defendant Counter Plaintiff - Appellant, and Clayton Spencer, Defendant.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-14\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 14, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n LIBERTY MUTUAL FIRE INSURANCE\n COMPANY,\n\n Plaintiff Counter Defendant -\n Appellee,\n\n v. No. 17-3249\n\n DENNIS WOOLMAN,\n\n Defendant Counter Plaintiff -\n Appellant,\n\n and\n\n CLAYTON SPENCER,\n\n Defendant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Kansas\n (D.C. No. 2:14-CV-02332-CM)\n _________________________________\n\nWesley J. Carrillo (Christopher M. Napolitano with him on the briefs), of Ensz & Jester\nP.C., Kansas City, Missouri, for Defendant-Appellant.\n\nBruce A. Moothart (Charlie J. Harris, Jr., with him on the brief), of Seyferth Blumenthal\n& Harris LLC, Kansas City, Missouri, for Plaintiff-Appellee.\n _________________________________\n\nBefore TYMKOVICH, Chief Judge, HOLMES, and PHILLIPS, Circuit Judges.\n _________________________________\n\nPHILLIPS, Circuit Judge.\n\f _________________________________\n\n The Federal Coal Mine Health and Safety Act of 1969, as amended by the\n\nBlack Lung Benefits Act (the Act), 30 U.S.C. §§ 901–945, requires coal-mine\n\noperators to provide benefits to miners whose contraction of pneumoconiosis—i.e.,\n\n“black lung” disease—from prolonged exposure to coal dust renders them totally\n\ndisabled. To comply with the Act, coal-mine operators must purchase a worker’s\n\ncompensation and employer liability insurance policy containing an “endorsement”\n\nensuring coverage for black-lung-benefits claims. In this appeal, Dennis Woolman—\n\nformer president of The Clemens Coal Company—challenges the district court’s\n\ndetermination that Liberty Mutual Fire Insurance Company didn’t breach a duty to\n\nhim by failing to procure for Clemens Coal an insurance policy with a black-lung-\n\ndisease endorsement. Woolman also challenges the district court’s rejection of his\n\nargument that Liberty Mutual should be estopped from denying black-lung-disease\n\ncoverage, insisting that he relied on Liberty Mutual to provide such coverage.\n\nExercising jurisdiction under 28 U.S.C. § 1291, we affirm.\n\n BACKGROUND\n\n Clemens Coal operated a surface coal mine in Pittsburg, Kansas until it filed\n\nfor bankruptcy in 1997. Woolman served as Clemens Coal’s last president before it\n\nwent bankrupt. Federal law required Clemens Coal to maintain worker’s\n\ncompensation insurance with a special endorsement covering miners’ black-lung-\n\ndisease benefits. See 20 C.F.R. § 726.203(a). Failure to procure such insurance could\n\n\n\n 2\n\fexpose Clemens Coal’s president and its officers to individual liability for black-lung\n\nbenefits and for civil penalties. Id. § 726.302(c)(1)–(2).\n\n Woolman didn’t personally procure insurance for Clemens Coal but instead\n\ndelegated that responsibility to James Worley, an outside consultant. In 1996, Worley\n\nreceived from Deborah Smith, Liberty Mutual’s commercial sales agent, a proposal\n\nto provide worker’s compensation and employer liability insurance to Clemens Coal.\n\nAfter some discussion, Worley agreed to purchase from Liberty Mutual a package\n\npolicy with effective dates of November 1, 1996, to November 1, 1997.1 Not only did\n\nthe policy not contain a black-lung-claim endorsement, it expressly excluded\n\ncoverage for federal occupational disease claims, such as those arising under the Act.\n\n Smith had never sold insurance to a coal company and wasn’t aware of the\n\nindustry’s exposure to black-lung claims. Worley, for his part, had never procured\n\ninsurance directly from an insurance company. Instead, he ordinarily consulted a\n\nbroker—Insurance Management Associates, Inc. (IMA)—and compared premiums\n\nand coverages from several potential carriers. In this case, he selected the Liberty\n\nMutual policy because it was $43,000 cheaper than comparable policies offered\n\nthrough IMA. An IMA account representative cautioned that this significant price\n\ndisparity suggested that the policy provided different coverages. Worley, however,\n\nassumed the Liberty Mutual policy was cheaper because it wasn’t in the assigned risk\n\npool for Kansas, which Worley understood to have considerably higher premiums.\n\n\n 1\n Although the policy was effective until November 1, 1997, it was cancelled\non August 1, 1997, because of non-payment.\n 3\n\f In 2012, Clayton Spencer—a former Clemens Coal employee—filed a claim\n\nwith the United States Department of Labor (DOL) against Clemens Coal for benefits\n\nunder the Act. After some investigation, the DOL advised Woolman that Clemens\n\nCoal was uninsured for black-lung-benefits claims as of July 25, 1997—the last date\n\nof Spencer’s employment—and that, without such coverage, Woolman, as Clemens\n\nCoal’s president, could be held personally liable. Woolman promptly tendered the\n\nclaim to Liberty Mutual for a legal defense. Liberty Mutual responded with a\n\nreservation-of-rights letter, stating that it hadn’t yet determined coverage for\n\nSpencer’s claim but that it would provide a defense during its investigation. In a\n\nfollow-up letter, Liberty Mutual clarified that it would defend Clemens Coal as a\n\ncompany—not Woolman personally—and advised Woolman to retain his own\n\ncounsel.\n\n Liberty Mutual eventually concluded that the insurance policy doesn’t cover\n\nSpencer’s black-lung claim, and on July 9, 2014, it sued Clemens Coal2 and\n\nWoolman seeking a judicial declaration to that effect. The parties stipulated that the\n\npolicy, “as written,” doesn’t provide coverage for Spencer’s claim. Appellee’s Suppl.\n\nApp. vol. 1 at 15. Nevertheless, as an affirmative defense, Woolman asserted that\n\nLiberty Mutual is estopped from denying black-lung-claim coverage because he\n\nexpected the coverage would be included in the policy and because the policy should\n\n\n\n 2\n The district court dismissed the claims against Clemens Coal before trial\nbecause Clemens Coal was bankrupt and thus no longer a legal entity capable of\nbeing sued.\n 4\n\fbe construed to contain the coverages that federal law requires. Woolman also\n\nasserted a counterclaim against Liberty Mutual for breach of its duty to act as a\n\nreasonably prudent insurance agent in procuring the proper coverage for Clemens\n\nCoal.\n\n The district court conducted a jury trial on Woolman’s counterclaim and a\n\nbench trial on his estoppel defenses. During the jury trial, the parties offered little\n\ndirect evidence of the circumstances surrounding Worley and Smith’s transaction to\n\nprocure insurance. Indeed, neither Worley nor Smith recalled the transaction, and\n\nWoolman, who admittedly wasn’t involved, had “no idea” what transpired.\n\nAppellant’s App. vol. 5 at 828:3. Smith resorted to testifying that, when selling\n\ninsurance, she ordinarily relied on the client to inform her of its required coverages.\n\nYet neither Smith nor Worley recalled discussing a need for black-lung-claim\n\ncoverage. And, while both Woolman and Worley testified that they intended to\n\nprocure whatever coverages were required by law, they admitted that they didn’t read\n\nthe policy to verify that it included such coverages; instead, they just assumed it did.\n\n Smith also testified that it was her “standard” practice to determine coverage\n\nneeds by reviewing the client’s expiring policy, though she regularly consulted other\n\nresources as many clients declined to share their prior policies. Id. vol. 4 at 585:1.\n\nWorley, in turn, testified that he would have permitted Smith to copy the coverages\n\nin Clemens Coal’s expiring policy from Hartford Underwriters Insurance Company.\n\nYet Smith didn’t recall reviewing the Hartford policy, and Worley didn’t recall\n\nsharing it. Regardless, the parties could only speculate as to the coverages that Smith\n\n 5\n\fmay have copied from the Hartford policy because it couldn’t be located at trial.3\n\nFurther, Liberty Mutual proffered evidence that, in a 1996 reservation-of-rights letter\n\nto Clemens Coal regarding a previous black-lung claim, Hartford questioned whether\n\nthe policy covered such claims.\n\n Lacking direct evidence of Worley and Smith’s transaction, Woolman urged\n\nthe jury to find that Liberty Mutual failed to exercise reasonable care in procuring\n\ninsurance based on the following series of inferences: (i) that Worley intended to\n\nacquire, and therefore requested, black-lung-claim coverage; (ii) that Worley\n\ntendered the expiring Hartford policy for Smith to review; (iii) that the policy\n\ncontained a black-lung-claim endorsement; and (iv) that Smith, following her\n\n“standard” practice, agreed to duplicate that coverage for Clemens Coal. Id. vol. 4 at\n\n585:1. Liberty Mutual countered that there was insufficient evidence for these\n\ninferences, and at the close of Woolman’s case-in-chief, it moved for judgment as a\n\nmatter of law under Rule 50 of the Federal Rules of Civil Procedure. The district\n\ncourt took the motion under advisement and permitted additional briefing.\n\n Woolman requested that the district court instruct the jury that his breach-of-\n\nduty counterclaim required proof (i) that Liberty Mutual undertook to procure\n\nworker’s compensation insurance for Clemens Coal; (ii) that Liberty Mutual failed to\n\nexercise appropriate skill, care, and diligence in that undertaking; and (iii) that\n\n\n\n 3\n Only the policy’s “Change in Information Page” was produced, and it didn’t\nindicate whether the policy had a black-lung-claim endorsement. Appellee’s Suppl.\nApp. vol. 2 at 40.\n 6\n\fWoolman suffered damages as a result. The court rejected Woolman’s request and,\n\ninstead, instructed the jury to determine whether Liberty Mutual breached a duty that\n\nit owed directly to Woolman as its “client.” Id. vol. 2 at 225–26. Woolman objected\n\nand asked for an instruction that Liberty Mutual owed him a duty “as the President of\n\nClemens Coal,” but the court overruled the objection. Id. vol. 5 at 907:23.\n\n The jury returned a verdict for Woolman on his counterclaim, awarding him\n\n$18,000 in damages. The district court, however, set aside the verdict and granted\n\nLiberty Mutual’s motion for judgment as a matter of law, concluding that Liberty\n\nMutual didn’t owe a duty to Woolman. Liberty Mut. Fire Ins. Co. v. Clemens Coal\n\nCo., 2016 WL 5817073, at *2 (D. Kan. Oct. 4, 2016). Months later, the court issued\n\nfindings of fact and conclusions of law regarding Woolman’s estoppel defenses. See\n\nLiberty Mut. Fire Ins. Co. v. Clemens Coal Co., 250 F. Supp. 3d 825, 832–39 (D.\n\nKan. 2017). Finding no evidence that Liberty Mutual had represented it would\n\nprocure black-lung-claim coverage for Woolman or that Woolman justifiably relied\n\non such representations, the court ruled against Woolman on the estoppel defenses\n\nand entered judgment in Liberty Mutual’s favor on its declaratory judgment claim.\n\nId. at 839.\n\n Woolman filed a post-trial motion to alter or amend the court’s judgment or, in\n\nthe alternative, for a new trial on his estoppel defenses. The court denied the motion.\n\nWoolman timely appealed, challenging the counterclaim and estoppel rulings as well\n\nas aspects of the court’s denial of his request for post-trial relief.\n\n\n\n 7\n\f DISCUSSION\n\n We first address Woolman’s argument that the district court improperly\n\ngranted Liberty Mutual’s motion for judgment as a matter of law on his breach-of-\n\nduty counterclaim. We then turn to Woolman’s argument that Liberty Mutual should\n\nbe judicially estopped from contesting that it owed him a duty. Finally, we address\n\nWoolman’s challenges to the district court’s ruling on his equitable and promissory\n\nestoppel defenses.\n\nI. Woolman’s Breach-of-Duty Counterclaim\n\n We review de novo a grant of judgment as a matter of law under Rule 50,\n\napplying the same standards as the district court. Elm Ridge Expl. Co., LLC v. Engle,\n\n721 F.3d 1199, 1216 (10th Cir. 2013). “All reasonable inferences are drawn in favor\n\nof the nonmoving party and this court does ‘not make credibility determinations or\n\nweigh the evidence.’” Stewart v. Adolph Coors Co., 217 F.3d 1285, 1288 (10th Cir.\n\n2000) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150\n\n(2000)). Judgment as a matter of law is appropriate only if a “reasonable jury would\n\nnot have a legally sufficient evidentiary basis” to find for the opposing party.\n\nFed. R. Civ. P. 50(a)(1); see also Finley v. United States, 82 F.3d 966, 968 (10th Cir.\n\n1996) (“[T]he evidence [must] point[] but one way and [be] susceptible to no\n\nreasonable inferences which may support the opposing party’s position.”) (quoting\n\nQ.E.R., Inc. v. Hickerson, 880 F.2d 1178, 1180 (10th Cir. 1989) (per curiam)).\n\n\n\n\n 8\n\f A. The “Exercise Care” Duty\n\n This is an action for failure to procure insurance, not an action for breach of\n\nthe insurance contract itself. Kansas courts refer to insurance agents’ “exercise care\n\nduty” in such circumstances. Marshel Invs., Inc. v. Cohen, 634 P.2d 133, 141 (Kan.\n\nCt. App. 1981). Under Kansas law, the general rule is that “an insurance agent or\n\nbroker who undertakes to procure insurance for another owes to the client the duty to\n\nexercise the skill, care and diligence that would be exercised by a reasonably prudent\n\nand competent insurance agent or broker acting under the same circumstances.” Id.\n\nAn action for breach of this duty sounds in both contract and tort because “the duty is\n\nboth an implied contractual term of the undertaking (contract duty) and a part of the\n\nfiduciary duty owed the client by reason of the principal-agent relationship arising\n\nout of the undertaking (tort duty).” Id. at 142.\n\n On appeal, Woolman argues that, although his breach-of-duty counterclaim\n\nsounds in both tort and contract, the district court “ignored the contractual nature” of\n\nthe claim. Appellant’s Opening Br. at 18. Woolman misreads the court’s analysis.\n\nThe court expressly rejected Woolman’s contract theory, reasoning that Liberty\n\nMutual didn’t undertake to procure insurance for Woolman as its client or to make\n\nthe insurance contract for his benefit. That the court referenced a “negligence\n\ncounterclaim,” see Liberty Mut., 2016 WL 5817073, at *2, doesn’t vitiate its\n\nsubstantive contractual analysis, cf. Appellant’s Opening Br. at 18 (arguing that the\n\nreference “demonstrates the [court’s] misapplication of the claim”).\n\n\n\n 9\n\f Woolman also contends that the district court “invaded the province of the\n\njury” when it determined, as a matter of law, that Liberty Mutual didn’t owe him a\n\nduty sounding in contract. Appellant’s Opening Br. at 18. In his view, the jury was\n\n“capable and required” to make that determination because the existence of a contract\n\nduty entails a factual inquiry into whether the parties formed an agreement to procure\n\ninsurance. Id. Woolman is doubly wrong. In the first instance, “whether a duty exists\n\nis a question of law” for the court to decide. Deal v. Bowman, 188 P.3d 941, 946\n\n(Kan. 2008) (brackets omitted) (quoting Nero v. Kan. State Univ., 861 P.2d 768, 772\n\n(Kan. 1993)). Even if the jury made a predicate factual finding that a contract exists,\n\nwhether Liberty Mutual owed Woolman a duty in connection with that contract is a\n\nquestion of law. And second, regardless, factual findings are not impervious to\n\njudicial scrutiny on a Rule 50 motion simply because the jury is the factfinder. To the\n\ncontrary, Rule 50 requires the court to interrogate the facts to determine whether a\n\n“legally sufficient evidentiary basis” exists to find for a party on a given issue. See\n\nFed. R. Civ. P. 50(a)(1).\n\n In short, the district court didn’t exceed its authority in holding, as a matter of\n\nlaw, that Liberty Mutual didn’t owe a contractual duty to Woolman. We now turn to\n\nthe substantive question whether judgment as a matter of law was appropriate as to\n\nWoolman’s breach-of-duty counterclaim.\n\n B. Contractual Breach\n\n Woolman advances two contract-based theories for why Liberty Mutual owed\n\nhim a duty to exercise care in procuring insurance: (i) that Liberty Mutual agreed to\n\n 10\n\fprocure insurance for him directly as its client; and (ii) that he was an intended third-\n\nparty beneficiary of Liberty Mutual’s agreement to procure insurance for Clemens\n\nCoal. The district court rejected both theories, finding no evidence either that\n\nWoolman and Liberty Mutual had a contractual relationship or that Clemens Coal\n\nand Liberty Mutual intended to procure insurance for Woolman’s benefit. We take\n\nthese issues in turn.\n\n 1. Evidence of a Direct Contractual Relationship between\n Liberty Mutual and Woolman\n\n To resolve Woolman’s first theory, we must determine whether a reasonable\n\njury, viewing the evidence in the light most favorable to Woolman, could conclude\n\nthat Liberty Mutual and Woolman formed a “contract to procure insurance.” See\n\nCasas v. Farmers Ins. Exch., 130 P.3d 1201, 1209 (Kan. Ct. App. 2005). In assessing\n\nwhether such an agreement exists, we apply “the general rules pertaining to the law\n\nof contracts,” Marker v. Preferred Fire Ins. Co., 506 P.2d 1163, 1168 (Kan. 1973),\n\nincluding the requirements of mutual assent to and consideration for the bargain, see\n\nUnified Sch. Dist. No. 446 v. Sandoval, 286 P.3d 542, 549 (Kan. 2012). The record in\n\nthis case is bereft of evidence supporting either requirement.4\n\n\n 4\n Because we conclude that Liberty Mutual didn’t manifest its assent to\nprocure insurance for Woolman, we needn’t reach the question whether Woolman\nprovided consideration for the bargain. In any case, Woolman doesn’t proffer any\nevidence on that score. Ordinarily, the consideration for an agent’s undertaking to\nprocure insurance is the agent’s expectation of pecuniary gain when the proposed\ninsured pays the policy’s premium. See Marker, 506 P.2d at 1168. Here, no evidence\nsuggests that Woolman personally—rather than Clemens Coal—would have paid the\npremium for the coverage that he sought. Accordingly, even if the parties mutually\nassented to procure such coverage, no binding contract exists.\n 11\n\f At the outset, there’s no evidence that Woolman requested insurance from\n\nLiberty Mutual or that Liberty Mutual undertook to insure him. Woolman admittedly\n\nwasn’t involved in negotiating the policy and didn’t instruct Worley to request any\n\ncoverages on his behalf. That Woolman, as Clemens Coal’s president, subjectively\n\ndesired coverage to indemnify himself from liability for black-lung claims doesn’t\n\nevince mutual assent with Liberty Mutual to procure such coverage.5 Indeed, there’s\n\nno evidence that Liberty Mutual was even aware of Woolman’s need for black-lung-\n\nclaim coverage. Regardless, Clemens Coal, not Woolman, was the client for whom\n\nLiberty Mutual undertook to procure insurance.\n\n Lacking evidence of an express agreement, Woolman asserts that Liberty\n\nMutual implicitly agreed to procure insurance for him. In effect, he reasons that, as\n\nthe individual with responsibility for Clemens Coal’s actions, he was Liberty\n\nMutual’s true “client.” See id. (“[R]easonable implication can be used to determine\n\nwho the client is[.]”). It is hornbook law, however, that an implied-in-fact contract\n\ndoesn’t exist absent evidence of the parties’ “mutual intent to contract.” Mai v.\n\nYoutsey, 646 P.2d 475, 479 (Kan. 1982); see also Smith v. Amoco Prod. Co., 31 P.3d\n\n255, 265 (Kan. 2001) (“[An implied contract] is the product of agreement, although it\n\n\n\n\n 5\n Woolman suggests that an agreement to procure insurance for him requires\nonly that he “selected and relied upon Liberty Mutual.” See Appellant’s Reply Br. at\n2. Although probative of his estoppel defenses, Woolman’s reliance is irrelevant to\nthe question whether he and Liberty Mutual had a binding contract to procure\ninsurance. As with any contract, parties to an agreement to procure insurance must\nmutually assent to its terms. Unilateral reliance doesn’t create a contract.\n 12\n\fis not expressed in words.”). Liberty Mutual’s intent to contract with Clemens Coal\n\ndoesn’t equate to an intent to contract with its officers.\n\n Perhaps recognizing this, Woolman suggests that his status as the “client” is\n\nirrelevant to whether Liberty Mutual owed him a duty to exercise care. See\n\nAppellant’s Opening Br. at 23. Woolman essentially argues that the duty attaches\n\nregardless of whether Liberty Mutual contracted to procure insurance for him\n\nbecause Liberty Mutual should have undertaken to insure him.6 Yet Kansas law is\n\nclear: an insurance agent “owes to the client” the duty to exercise care. Marshel, 634\n\nP.2d at 141 (emphasis added); see also Marker, 506 P.2d at 1169 (noting that a\n\nfailure to procure insurance requires that “the relationship of broker and client has\n\nbeen established with mutual obligations arising from that relationship”). Absent\n\nevidence of an agent-client relationship, Liberty Mutual wasn’t contractually bound\n\nto procure insurance for Woolman.\n\n 2. Evidence that Clemens Coal and Liberty Mutual Intended to\n Procure Insurance for Woolman’s Benefit\n\n Woolman’s assertion that he is an intended beneficiary of Liberty Mutual and\n\nClemens Coal’s agreement to procure insurance similarly fails. Under Kansas law,\n\n“parties are presumed to contract for themselves, and their intent that a third person\n\n\n 6\n Woolman further elaborates that, had Liberty Mutual procured the proper\ninsurance, the policy “would have made Woolman a party as an insured under the\nblack lung endorsement.” See Appellant’s Opening Br. at 23. This puts the cart\nbefore the horse. Whether Woolman would have been a party to a hypothetical\ninsurance contract has no bearing on whether he was a party to an agreement to\nprocure such insurance. And regardless, an insured party isn’t necessarily a\ncontracting party.\n 13\n\freceive a direct benefit must be clearly expressed in the contract.” Byers v. Snyder,\n\n237 P.3d 1258, 1265 (Kan. Ct. App. 2010); see also In re Shevling, 97 P.3d 1036,\n\n1040 (Kan. 2004) (same). An individual claiming third-party-beneficiary status has\n\nthe burden of showing the existence of a “provision in the contract that operates to\n\nhis benefit.” State ex rel. Stovall v. Reliance Ins. Co., 107 P.3d 1219, 1231 (Kan.\n\n2005) (quoting Hartford Fire Ins. Co. v. W. Fire Ins. Co., 597 P.2d 622, 632 (Kan.\n\n1979)). A reviewing court, in turn, applies “general rules for construction of\n\ncontracts” in assessing a third-party-beneficiary claim. Byers, 237 P.3d at 1265.\n\n Woolman doesn’t allege that Liberty Mutual and Clemens Coal had a written\n\ncontract to procure insurance for his benefit. Rather, he asserts that they had an oral\n\nagreement, an implicit condition of which was that Liberty Mutual procure coverage\n\nto indemnify him from liability for black-lung-benefits claims. Woolman thus inverts\n\nthe ordinary standard of proof for third-party-beneficiary claims: rather than identify\n\nan express contractual provision that operates to his direct benefit, he contends that\n\nthe agreement to procure insurance for Clemens Coal implicitly guaranteed that the\n\npolicy would contain such a provision.7 Kansas law, however, doesn’t permit a third\n\nparty to enforce a contract on an unspoken promise of future beneficence. Instead,\n\nthe contract itself must explicitly and directly benefit the third party. See Fasse v.\n\nLower Heating & Air Conditioning, Inc., 736 P.2d 930, 932 (Kan. 1987).\n\n\n 7\n Woolman faults the district court for ignoring the distinction between the\ncontract to procure insurance and the insurance policy itself. Yet the distinction is one\nwithout a material difference. Woolman adduced no evidence at trial that any agreement\n“clearly expressed” an intent to benefit him. Cf. Fasse, 736 P.2d at 932.\n 14\n\f Regardless, even assuming Woolman could enforce an implicit agreement to\n\nprocure insurance for his benefit, there’s no evidence that the parties reached such an\n\nagreement. “[L]ess strict proof is required for an oral agreement to procure insurance\n\nthan for a contract of insurance.” Marshel, 634 P.2d at 142. Indeed, evidence that the\n\nparties expressly assented to all the agreement’s terms is unnecessary, as many terms\n\ncan be established by “[r]easonable implication.” Id. An implied contract to procure\n\ninsurance, however, requires that the client provide “sufficiently definite directions”\n\nfor the agent to “consummate the final insurance contract” and that the agent “know\n\nor have ready access to the information needed to procure the insurance or be able to\n\nimply the terms from prior dealings.” See Casas, 130 P.3d at 1210 (quoting Harris v.\n\nAlbrecht, 86 P.3d 728, 731, 732 (Utah 2004)).\n\n Woolman doesn’t seriously contend that either he or Worley gave Smith\n\n“sufficiently definite directions” with respect to the need to insure him against black-\n\nlung claims. To the contrary, Woolman testified at trial that he wasn’t involved in the\n\ntransaction and that he didn’t instruct Worley to obtain any specific coverages from\n\nSmith. Worley, in turn, testified that he didn’t request black-lung coverage because\n\nhe “assumed” it would be included. It is of no moment that Woolman and Worley’s\n\n“intent” was to procure insurance that would benefit Woolman, see Appellant’s\n\nOpening Br. at 13 (citing Appellant’s App. vol. 5 at 795:18–796:3, 801:5–6; id. vol. 6\n\nat 964:7–12), because they never communicated that intent to Smith.\n\n Similarly, there’s no evidence that Smith knew the “information needed to\n\nprocure” black-lung-claim coverage. See Casas, 130 P.3d at 1210. At trial, Smith\n\n 15\n\ftestified that she’d never sold insurance to a coal company and that she wasn’t aware\n\nof either the Act or black-lung disease when she sold the policy to Clemens Coal.\n\nWoolman replies on appeal that Smith must have been “well-apprised” of Clemens\n\nCoal’s coverage needs because Liberty Mutual specifically targeted the coal industry.\n\nOpening Br. at 51. Woolman’s only evidence for this assertion is a Liberty Mutual\n\nproforma in which Clemens Coal is listed as a “Prospect” and a box is checked for\n\n“Target Market.” Appellant’s App. vol. 7 at 1113. Yet an isolated checkmark, devoid\n\nof substantive elaboration, reveals nothing about Smith’s or Liberty Mutual’s\n\nknowledge of black-lung-claim coverage. And regardless, Smith testified that the\n\ncheckmark was likely inadvertent and may not have reflected an actual campaign to\n\ntarget coal companies.\n\n Woolman nevertheless argues that, by soliciting business from a “known coal\n\ncompany,” Liberty Mutual contemplated that the contract to procure insurance would\n\n“incorporate[] the ‘well-known’ standards” associated with such companies.\n\nAppellant’s Opening Br. at 22 (quoting Marshel, 634 P.2d at 141). Woolman asserts\n\nthat coverage shielding a coal company’s president from liability for black-lung-\n\ndisease benefits is a “well-known” standard because the Act has for decades imposed\n\npersonal liability for such benefits. Appellant’s Opening Br. at 22. Smith, however,\n\nwasn’t aware of this purported standard because she had no experience selling\n\ninsurance to a coal company. An agent contemplates the incorporation of standards\n\n\n\n\n 16\n\fthat are known within the agent’s “field of expertise,” Marshel, 634 P.2d at 142, not\n\nstandards about which the agent has no knowledge.8\n\n Finally, there’s no evidence that Smith had “ready access to the information\n\nneeded to procure” black-lung-claim coverage. See Casas, 130 P.3d at 1210 (quoting\n\nHarris, 86 P.3d at 732). Woolman’s argument to the contrary relies on an implausible\n\nchain of inferences: that Smith would have asked to review, and Worley would have\n\ntendered, Clemens Coal’s expiring Hartford insurance policy; that the Hartford\n\npolicy, according to the IMA broker who procured it, would have contained a black-\n\nlung-claim endorsement; and that Smith, following her “standard” procedure, would\n\nhave duplicated that endorsement. See Appellant’s Opening Br. at 21–22 (quoting\n\nAppellant’s App. vol. 5 at 584:16–585:12, 587:1–5). The evidence adduced at trial\n\ndoesn’t support these inferences. Worley didn’t recall sharing the Hartford policy,\n\nand Smith didn’t recall receiving it; insufficient portions of the policy were produced\n\nto confirm its black-lung-claim coverage, and Hartford previously questioned such\n\ncoverage; and Smith testified that duplicating an expiring policy was just one of\n\nmany ways that she determined coverage. It is unreasonable to infer from this\n\nevidence that Worley shared, and Smith duplicated, an insurance policy with black-\n\n\n\n\n 8\n Woolman insists that the contract to procure insurance must have\nincorporated well-known standards because his and Worley’s “intent was to be in\ncompliance with the law in procuring insurance.” Appellant’s Opening Br. at 22. But\nsuch subjective intent doesn’t somehow impute to Smith any knowledge of a standard\nrequiring insurance for a coal company’s president—much less a reciprocal intent to\nbenefit the president.\n 17\n\flung-claim coverage—regardless of what the parties purportedly would have done\n\nand what the Hartford policy would have contained.\n\n Nonetheless, even assuming Smith followed her standard procedure and\n\nundertook to replicate the Hartford policy’s black-lung endorsement, that undertaking\n\nsuggests only that Smith intended to provide the same coverages that Clemens Coal\n\nenjoyed with its prior carrier, not that Smith intended to benefit Woolman personally.\n\nWoolman counters that, by undertaking to procure a black-lung endorsement, Smith\n\nnecessarily intended to directly benefit him “by eliminating his personal liability” for\n\nblack-lung claims. Appellant’s Reply Br. at 9.9 According to Woolman, it is\n\nsufficient that he would be an “identifiable beneficiary” of the endorsement. Id.10 Yet\n\njust because the endorsement would operate to Woolman’s benefit doesn’t mean that\n\nSmith intended to benefit Woolman. At most, the benefit would be incidental to and\n\n\n\n 9\n Woolman stresses that the generic black-lung endorsement, set forth in 20\nC.F.R. § 726.203(a), references the Act’s personal-liability provisions, including\nthose applicable to a coal company’s president, see, e.g., 30 U.S.C. § 933(d). At\nmost, this reference alerts the contracting parties that the black-lung endorsement\nwould shield the president from personal liability. But “[k]nowledge that a contract\nwill benefit a third party is not intent to benefit the third party.” Noller v. GMC Truck\n& Coach Div., 772 P.2d 271, 275 (Kan. 1989).\n 10\n Woolman goes so far as to suggest that, because the purpose of insurance is\nto “minimize a risk,” anyone “who would realize the mitigation or elimination of the\nrisk” is an insurance policy’s intended beneficiary. Appellant’s Reply Br. at 8. This\nargument ignores the “intent” requirement entirely, enshrining a per se rule that\nwould bestow third-party-beneficiary status on anyone whose risk an insurance\ncontract happens to mitigate. A third-party beneficiary, however, is “one who the\ncontracting parties intended should receive a direct benefit from the contract,” see\nMartin v. Edwards, 548 P.2d 779, 784–85 (Kan. 1976), not one who happens to\nbenefit from the contract, see In re Shevling, 97 P.3d at 1040.\n 18\n\fnot the direct object of the endorsement, the primary purpose of which is to insure\n\nminers who contract black-lung disease.\n\n In short, there’s no evidence that the parties intended—impliedly or\n\notherwise—to procure black-lung-claim insurance for Woolman’s direct benefit.\n\nClemens Coal didn’t give Liberty Mutual any directions regarding a need to procure\n\nsuch coverage, and Liberty Mutual didn’t already know of or have access to the\n\ninformation needed to procure it. Even Woolman’s “standard procedure” chain of\n\ninferences suggests, at most, that Liberty Mutual intended to procure black-lung-\n\nclaim coverage for Clemens Coal as a company. Although Liberty Mutual may have\n\nowed Clemens Coal a duty to “exercise care” in that undertaking, it doesn’t follow\n\nthat it owed a separate duty to Woolman in his personal capacity.\n\n C. Tortious Breach\n\n Woolman devotes much of his time fighting an uphill battle on the breach-of-\n\ncontract front while leaving his tort theory relatively underdeveloped. His argument\n\nthat Liberty Mutual owed him a duty sounding in tort reduces to the proposition that,\n\nas Clemens Coal’s president, he is a foreseeable plaintiff because the Act makes him\n\npersonally liable for uninsured black-lung benefits. He further contends that the\n\nprobability of harm—i.e., that he would be held personally liable—is foreseeable\n\nbecause “the risk is delineated by law[] and claims for black lung disease are\n\ncommon among coal companies.” Appellant’s Reply Br. at 10.\n\n This analysis misses the point. Regardless of whether Woolman is a\n\nforeseeable plaintiff under an ordinary negligence analysis, his foreseeability, alone,\n\n 19\n\fdoesn’t give rise to a duty to exercise care in procuring insurance. The Court of\n\nAppeals of Kansas explained in Marshel that the duty arises in tort as “part of the\n\nfiduciary duty owed the client by reason of the principal-agent relationship arising\n\nout of the undertaking” to procure insurance. 634 P.2d at 142. The Court of Appeals\n\nhas since read Marshel as holding that “a tort duty only arises when there is a\n\ncontractual undertaking by the agent” for the client. Duncan v. Janosik, Inc., 203\n\nP.3d 88 (Kan. Ct. App. 2009) (unpublished table decision). As a result, “when there\n\nis no contract duty between the agent and client, . . . there is no basis from which a\n\ntort duty may arise.” Id. Our conclusion that Liberty Mutual didn’t owe Woolman a\n\ncontract duty thus forecloses the possibility that it owed him a duty sounding in tort.\n\nII. The Judicial Estoppel Doctrine\n\n In a last-ditch attempt to salvage his breach-of-duty counterclaim, Woolman\n\nasserts that Liberty Mutual should be judicially estopped from disputing that it owed\n\nhim a duty because it took inconsistent positions on the issue in the district court and\n\nobtained an unfair advantage as a result. Woolman initially asserted judicial estoppel\n\nin his post-trial motion to alter or amend the district court’s judgment. Because\n\nWoolman could have, but did not, raise the issue before judgment, the district court\n\ndeclined to alter or amend its judgment on that basis. On appeal, Woolman argues\n\nthat this decision “resulted in manifest injustice and was clear error.” Appellant’s\n\nOpening Br. at 29.\n\n Judicial estoppel “is an equitable doctrine invoked by a court at its discretion.”\n\nNew Hampshire v. Maine, 532 U.S. 742, 750 (2001) (quoting Russell v. Rolfs, 893\n\n 20\n\fF.2d 1033, 1037 (9th Cir. 1990)). We therefore review the district court’s judicial-\n\nestoppel decision for abuse of discretion. Bradford v. Wiggins, 516 F.3d 1189, 1193\n\n(10th Cir. 2008). “A court abuses its discretion only ‘when it makes a clear error of\n\njudgment, exceeds the bounds of permissible choice, or when its decision is arbitrary,\n\ncapricious or whimsical, or results in a manifestly unreasonable judgment.’” Eastman\n\nv. Union Pac. R.R., 493 F.3d 1151, 1156 (10th Cir. 2007) (quoting United States v.\n\nNickl, 427 F.3d 1286, 1300 (10th Cir. 2005)).\n\n The judicial-estoppel doctrine’s purpose is to “prevent improper use of judicial\n\nmachinery” by parties attempting to “deliberately chang[e] positions according to the\n\nexigencies of the moment.” Queen v. TA Operating, LLC, 734 F.3d 1081, 1087 (10th\n\nCir. 2013) (quoting New Hampshire, 532 U.S. at 749–50). The doctrine’s\n\napplicability generally turns on whether a party’s later position is “clearly\n\ninconsistent” with its former position; whether the party successfully persuaded the\n\ncourt to accept its previous position, such that the court’s later acceptance of an\n\ninconsistent position would “create ‘the perception that either the first or the second\n\ncourt was misled’”; and whether the party would derive an unfair advantage unless\n\nestopped. New Hampshire, 532 U.S. at 750–51 (internal quotation marks omitted)\n\n(first quoting United States v. Hook, 195 F.3d 299, 306 (7th Cir. 1999); then quoting\n\nEdwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir. 1982)). The analysis is\n\nultimately fact-specific, however, and requires no “inflexible prerequisites.” Id. at\n\n751.\n\n\n\n 21\n\f Woolman argues that judicial estoppel is warranted in this case for three\n\nprimary reasons. He asserts, first, that Liberty Mutual waived its right to dispute that\n\nit owed him a duty when it admitted in its answer to his counterclaim that he was the\n\n“real party in interest” to the claim. Appellant’s Opening Br. at 29–30. Second, he\n\ncontends that Liberty Mutual took “contrary position[s]” on whether it owed him a\n\nduty and on whether he must prove a duty independent of Liberty Mutual’s\n\nobligations to Clemens Coal. Id. at 30. And third, he contends that Liberty Mutual\n\ngained an “unfair advantage” by neglecting to contest the existence of a duty until\n\nlate in the litigation. Appellant’s Reply Br. at 14. All three arguments fail.\n\n First, Liberty Mutual’s admission that Woolman is the real party in interest to\n\nassert the breach-of-duty counterclaim has no bearing on the claim’s merits. The real\n\nparty in interest is simply “the person who possesses the right sought to be enforced.”\n\nO’Donnell v. Fletcher, 681 P.2d 1074, 1076 (Kan. Ct. App. 1984). An entitlement to\n\nenforce a right, however, “neither enlarges nor restricts a party’s substantive right to\n\nrecover in a particular action.” Id. at 1077. Hence, even if Woolman is the “real party\n\nin interest” to the counterclaim, he still must demonstrate a substantive right to\n\nrecover on the claim, including by proving that Liberty Mutual owed him a duty.\n\nLiberty Mutual didn’t somehow waive that obligation.11\n\n\n\n 11\n Woolman adds that Liberty Mutual failed to timely raise, and thus waived,\nany “objection based on [an] alleged failure to have the action prosecuted in the name\nof the real party in interest.” Appellant’s Opening Br. at 30 (quoting O’Donnell, 681\nP.2d at 1077). This is a strawman, because Liberty Mutual doesn’t purport to raise\nsuch an objection. Liberty Mutual disputes that it owed Woolman a duty, not that\n 22\n\f Second, Liberty Mutual never took a contrary position on the existence of a\n\nduty. Woolman argues that Liberty Mutual initially “assumed” it owed him a duty,\n\nAppellant’s Opening Br. at 31, citing Liberty Mutual’s assertion in the pretrial order\n\nthat it “did not breach any assumed duty to Woolman in the issuance of the Liberty\n\nMutual Policy,” Appellant’s App. vol. 1 at 96. Yet “assumed,” in this context, is an\n\nadjective meaning “not true” or “supposed.” It is not, as Woolman suggests, a\n\ntransitive verb denoting an “acceptance” or “undertaking” of a position. That is,\n\nLiberty Mutual didn’t accept that it owed Woolman a duty but rather asserted that it\n\ndidn’t breach a nonexistent duty to him. Liberty Mutual’s later position that it didn’t\n\nowe Woolman a duty isn’t inconsistent with this earlier position. See New\n\nHampshire, 532 U.S. at 750.12\n\n Liberty Mutual also never took a contrary position on whether Woolman must\n\nprove that it owed him a duty independent of any duty that it owed to Clemens Coal.\n\nWoolman stresses that Liberty Mutual didn’t make the argument that he must prove\n\nan independent duty until after the close of his case-in-chief. That Liberty Mutual\n\nwaited to raise the argument, however, doesn’t mean it ever adopted a contrary\n\n\nWoolman has the capacity to assert the breach-of-duty counterclaim. Woolman\nconflates these distinct concepts.\n 12\n As further evidence that Liberty Mutual initially admitted it owed him duty,\nWoolman notes that Liberty Mutual failed to assert absence of a duty “as a defense”\nin the pretrial order. Appellant’s Opening Br. at 31. He emphasizes that Liberty\nMutual asserted a defense to the breach element of his counterclaim but didn’t\nspecifically contest the duty element. Yet Liberty Mutual’s silence on the duty\nelement isn’t an admission as to that element, much less a “clearly inconsistent”\nposition.\n 23\n\fposition. Indeed, Woolman’s only evidence of inconsistency is that Liberty Mutual\n\ndidn’t raise the independent-duty argument in its summary judgment briefing but\n\ninstead focused solely on whether it breached a duty to Clemens Coal. Yet Liberty\n\nMutual’s omission of the argument doesn’t constitute an affirmative position to the\n\ncontrary. Cf. Appellant’s Reply Br. at 14 (reading the omission as Liberty Mutual\n\ntaking the view that “Woolman need not prove a duty independent of that owed to\n\nClemens Coal”).13\n\n Third, and last, Liberty Mutual didn’t obtain an “unfair advantage” by failing\n\nto contest that it owed Woolman a duty until its motion for judgment as a matter of\n\nlaw. See New Hampshire, 532 U.S. at 751. Woolman reasons that he “had no\n\nexpectation [duty] was an issue to be tried,” because Liberty Mutual didn’t dispute\n\nthat it owed him a duty in its answer, in the pretrial order, or in its summary-\n\njudgment briefing. Appellant’s Opening Br. at 30. This is tantamount to arguing that\n\na party needn’t prove an element of its claim unless the other party disputes it. Yet\n\nWoolman had the burden of proving that a legal duty existed as part of his prima\n\nfacie case, regardless of whether Liberty Mutual raised the issue. Accordingly,\n\nLiberty Mutual’s initial failure to contest the issue didn’t prejudice Woolman.\n\n Woolman’s evidence, in brief, falls short of demonstrating entitlement to\n\njudicial estoppel—much less that the district court abused its discretion in refusing to\n\n\n\n 13\n Because Liberty Mutual didn’t espouse inconsistent positions on the\nindependent-duty question, we needn’t address whether Liberty Mutual persuaded the\ndistrict court to adopt an earlier, contrary position.\n 24\n\festop Liberty Mutual from contesting that it owed Woolman a duty. We therefore\n\ndecline to disturb the district court’s judgment.\n\nIII. Woolman’s Estoppel Defenses\n\n Woolman advances several arguments in support of his entitlement to\n\nequitable and promissory estoppel. As a threshold issue, he contends that the district\n\ncourt erred in declining to submit to the jury a series of interrogatories that related to\n\nhis estoppel defenses. He then argues that the district court, in resolving his estoppel\n\ndefenses, failed to bind itself to factual findings implicit in the jury’s verdict in the\n\ncounterclaim trial. Next, he asserts that the district court misapplied the law to his\n\nestoppel defenses. And finally, he contends that the district court erred in failing to\n\nuse estoppel to expand the Liberty Mutual policy’s coverages beyond its terms.\n\n A. The Special Interrogatories\n\n Before trial, Woolman asked the district court to submit his estoppel defenses\n\nto the jury as well as several special interrogatories regarding the defenses. The court\n\ndenied both requests, and instead limited the trial to the breach-of-duty counterclaim.\n\nOn appeal, Woolman contends that the court erred in thus limiting the trial and that,\n\ninstead, it should have asked the jury to make factual findings that would have\n\ncontrolled the court’s resolution of the estoppel defenses. He avers that the absence\n\nof such explicit guidance from the jury’s interrogatory answers resulted in the court\n\nmaking findings in its estoppel ruling that were contrary to findings implicit in the\n\njury’s verdict.\n\n\n\n 25\n\f We review de novo whether, “as a whole, the district court’s jury instructions\n\ncorrectly stated the governing law and provided the jury with an ample understanding\n\nof the issues and applicable standards.” Martinez v. Caterpillar, Inc., 572 F.3d 1129,\n\n1132 (10th Cir. 2009) (quoting World Wide Ass’n of Specialty Programs v. Pure,\n\nInc., 450 F.3d 1132, 1139 (10th Cir. 2006)). But we review a decision whether to\n\ngive a particular instruction only for abuse of discretion. Webb v. ABF Freight Sys.,\n\nInc., 155 F.3d 1230, 1248 (10th Cir. 1998). If the instructions “as a whole adequately\n\nstate[] the law, the refusal to give a particular requested instruction is not an abuse of\n\ndiscretion.” United States v. Suntar Roofing, Inc., 897 F.2d 469, 473 (10th Cir.\n\n1990).\n\n Here, the jury instructions as a whole adequately stated the governing law\n\nregarding Kansas’ exercise-care duty. The district court didn’t abuse its discretion in\n\ndeclining to further instruct the jury about defenses not at issue in the trial. The court\n\nspecifically bifurcated the litigation, submitting Woolman’s legal counterclaim to the\n\njury while reserving for itself resolution of Woolman’s equitable defenses. Given this\n\nbifurcation, an instruction on equitable defenses not at issue in the jury trial risked\n\nmisleading the jury in its “understanding of the issues and law applicable to the case\n\nbefore it.” United States v. Laughlin, 26 F.3d 1523, 1528 (10th Cir. 1994). The court\n\nproperly declined to obfuscate the issues in this manner.14\n\n\n 14\n To the extent Woolman challenges the district court’s refusal to submit the\nestoppel defenses to the jury, that argument also fails. “Entitlement to a jury trial is a\nquestion of law which we review de novo.” Bowdry v. United Airlines, Inc., 58 F.3d\n1483, 1489 (10th Cir. 1995). Unless a statute speaks to a jury-trial right, we look to\n 26\n\f B. The Jury’s “Implicit Findings”\n\n Woolman stakes much of his estoppel argument on the assertion that the\n\ndistrict court, in ruling on his estoppel defenses, erred in failing to bind itself to the\n\n“implicit findings” that the jury made regarding his breach-of-duty counterclaim and\n\nin failing to consider “alternative factual findings” that the jury could have made to\n\nsupport its verdict. See Appellant’s Opening Br. at 34. Woolman insists that when, as\n\nhere, legal and equitable claims are “commingled,” the Seventh Amendment\n\nprohibits a court from “reaching factual conclusions contrary to those explicitly or\n\nimplicitly reached by the jury.” Id. at 33. Liberty Mutual counters that a court must\n\nbind itself only to the jury’s findings on “common questions of fact” and argues that,\n\nin this case, no common factual issues bound the court. Appellee’s Br. at 26–27\n\n(quoting Colo. Visionary Acad. v. Medtronic, Inc., 397 F.3d 867, 875 (10th Cir.\n\n2005)).\n\n In an appeal from a bench trial, we review the district court’s factual findings\n\nfor clear error. Keys Youth Servs., Inc. v. City of Olathe, 248 F.3d 1267, 1274 (10th\n\nCir. 2001). Where the case also involves a jury trial, we must “take into account the\n\nbinding effect” on the trial court of the jury’s findings as to issues of fact common to\n\nboth the legal and the equitable claims. Smith v. Diffee Ford–Lincoln–Mercury, Inc.,\n\n\n\nthe Seventh Amendment to determine entitlement to a jury trial. See Tull v. United\nStates, 481 U.S. 412, 417 & n.3 (1987). Though the Seventh Amendment guarantees\nthe right to a jury trial in any suit involving “legal rights,” this guarantee doesn’t\nextend to “equitable rights.” Bowdry, 58 F.3d at 1489. Hence, Woolman had no\nentitlement to a jury trial on his equitable defenses.\n 27\n\f298 F.3d 955, 965 (10th Cir. 2002). This ensures that litigants’ Seventh Amendment\n\njury-trial rights aren’t rendered meaningless on such common factual issues. See id.\n\n(quoting Ag Servs. of Am. v. Nielsen, 231 F.3d 726, 730 (10th Cir. 2000)). The jury’s\n\nfindings, however, bind the court only to the extent that “fact issues central to a claim\n\nare decided by a jury upon evidence that would justify its conclusion.” Brinkman v.\n\nDep’t of Corrections, 21 F.3d 370, 372–73 (10th Cir. 1994).\n\n Here, the parties’ protracted focus on the jury’s implicit findings is largely\n\nacademic, because no factual findings bound the district court in its disposition of\n\nWoolman’s estoppel defenses. Our previous discussion makes clear that the jury’s\n\nverdict for Woolman on his counterclaim lacked competent “evidence that would\n\njustify its conclusion.” See id. at 372. And regardless, before issuing its estoppel\n\ndecision, the district court granted Liberty Mutual’s motion for judgment as a matter\n\nof law and set aside the verdict—thus nullifying any factual findings explicit or\n\nimplicit in the verdict. See Appellant’s App. vol. 2 at 340 (“The court sets aside the\n\njury’s verdict and award . . . .”). The jury’s factual findings, of course, couldn’t\n\nconstrain the court if the verdict wasn’t intact. Cf. Nielsen, 231 F.3d at 731\n\n(concluding that, because the trial court “left intact the jury’s verdict and its explicit\n\nfindings and those necessarily implicit from the verdict,” those findings bound the\n\ncourt).\n\n Because the district court properly set aside the verdict as contrary to the\n\nevidence under Federal Rule of Civil Procedure 50, we needn’t inquire further\n\nwhether the court made factual findings inconsistent with the jury’s implicit\n\n 28\n\ffindings.15 We therefore turn to the court’s substantive analysis of Woolman’s\n\nestoppel defenses.\n\n C. The Substantive Law of Estoppel\n\n Woolman protests the district court’s purported misapplication of the law in\n\ndisposing of his equitable- and promissory-estoppel defenses. In an appeal from a\n\nbench trial, we review the district court’s conclusions of law de novo. Sanpete Water\n\nConservancy Dist. v. Carbon Water Conservancy Dist., 226 F.3d 1170, 1177–78\n\n(10th Cir. 2000). We continue to review the court’s factual findings for clear error.\n\nId. at 1177.\n\n A party asserting equitable estoppel must show that another party, “by its acts,\n\nrepresentations, admissions, or silence when it had a duty to speak, induced [the first\n\nparty] to believe certain facts existed,” and also that the first party “rightfully relied\n\n\n\n 15\n Woolman would have us conclude that the jury made a series of findings in\nreaching its verdict, but as Woolman recites them, these findings are implausible and\nignore mountains of evidence to the contrary. According to Woolman, the findings\ninclude that Worley gave Smith a copy of the Hartford policy; that the policy\ncontained a black-lung endorsement; that Smith followed her “standard” procedure to\ncopy the endorsement; and that Clemens Coal didn’t have actual notice that the\nLiberty Mutual policy differed in its coverages from policies offered through IMA.\nNone of these findings have a reasonable basis in the record—and thus, the jury\ncouldn’t have implied them in its verdict.\n Woolman’s misguided analysis relies on the flawed notion that the jury could\nnot have reached its verdict without implying these findings. But a simpler rationale\nfor the verdict accords with the weight of the evidence and doesn’t rely on a complex\nweb of unlikely implicit findings: in determining that Liberty Mutual breached a duty\nto Woolman, the jury concluded that Liberty Mutual negligently failed to familiarize\nitself with and procure the “proper coverage” that coal companies like Clemens Coal\nrequire. This rationale is entirely consistent with the district court’s resolution of\nWoolman’s estoppel defenses.\n 29\n\fand acted upon such belief.” Mut. Life Ins. Co. of N.Y. v. Bernasek, 682 P.2d 667,\n\n730 (Kan. 1984) (quoting Cosgrove v. Young, 642 P.2d 75, 84 (Kan. 1982)).\n\nEquitable estoppel therefore “has two fundamental elements: misrepresentation and\n\ndetrimental reliance.” United Cities Gas Co. v. Brock Expl. Co., 995 F. Supp. 1284,\n\n1297 (D. Kan. 1998). Promissory estoppel similarly requires a representation\n\ninducing reliance; the difference being that, for promissory estoppel, “the\n\nrepresentation is promissory rather than to an existing fact.” Marker, 506 P.2d at\n\n1170.16\n\n Here, the district court found no evidence that Liberty Mutual represented or\n\npromised to procure black-lung coverage. To prove the representation element,\n\nWoolman falls back on the jury’s “implicit finding[]” that Smith “promise[d] to\n\nduplicate Clemens Coal’s previous coverage in conformity with her standard\n\nprocedure.” Appellant’s Opening Br. at 43. Our rejection of the “implicit findings”\n\nthesis above predetermines our rejection of it here. See discussion, supra Section\n\nIII.B. Furthermore, even drawing all reasonable inferences in Woolman’s favor,\n\nthere’s no evidence that Smith promised to duplicate coverages or that she even\n\ninformed Worley that her “standard” procedure involved duplication. Nevertheless,\n\neven if Smith promised to duplicate the Hartford policy’s coverages, there’s no\n\nevidence that she promised to duplicate black-lung coverage. The suggestion that\n\nSmith made such a promise presupposes that she received a copy of the Hartford\n\n\n 16\n The promissory “representation” also needn’t be a “misrepresentation.” See\nBouton v. Byers, 321 P.3d 780, 792 (Kan. Ct. App. 2014) (clarifying this distinction).\n 30\n\fpolicy and that the policy had black-lung coverage to duplicate—two facts with no\n\nbasis in the record.\n\n Lacking evidence of a promise to duplicate coverage, Woolman argues that\n\nSmith “had a duty to inform Clemens Coal if she could not duplicate coverage” and\n\nthat Smith’s silence in the face of that duty induced Clemens Coal to believe that she\n\nundertook to duplicate coverage. Appellant’s Opening Br. at 43. This inverts the\n\nanalysis. Absent evidence that Clemens Coal asked Smith to duplicate coverage or\n\nthat Smith promised to do so, Smith’s “silence” represented nothing. Clemens Coal\n\ncouldn’t construe such silence as a promise that Smith would duplicate coverage if\n\nthere was no baseline expectation that Smith would duplicate coverage. Accordingly,\n\nSmith had no “duty” to inform Clemens Coal that she couldn’t duplicate coverage.\n\nThe necessary predicate to an obligation to correct an earlier representation is, after\n\nall, the existence of an earlier representation. Woolman’s estoppel defenses fail on\n\nthe first element. See Ram Co. v. Estate of Kobbeman, 696 P.2d 936, 944 (Kan. 1985)\n\n(stating that an estoppel claim fails if any essential element “is lacking or is not\n\nsatisfactorily proved”) (quoting 28 Am. Jur. 2d Estoppel & Waiver §§ 35–36 (1964)).\n\n Assuming Woolman could prove that Smith promised to duplicate coverage,\n\nhe nevertheless fails to show that he reasonably relied on that promise. The district\n\ncourt found that any reliance wasn’t reasonable, in part, because Woolman failed to\n\nread the insurance policy, which unambiguously excluded coverage for black-lung\n\nclaims. On appeal, Woolman doesn’t dispute that he didn’t read the policy but asserts\n\nthat he had a duty to read only the “application for insurance.” Appellant’s Opening\n\n 31\n\fBr. at 44. He contends that “an insured has a right to assume the policy provides the\n\ncoverage requested—here, the same coverages as The Hartford policy . . . .” Id. Yet\n\nWoolman doesn’t even claim that he read the insurance application. Any purported\n\ndistinction between the policy and the application is thus immaterial, because\n\nWoolman cannot credibly claim reliance on either document. See Chism v. Protective\n\nLife Ins. Co., 234 P.3d 780, 792 (Kan. 2010) (duty to read application); Jones v.\n\nReliable Sec. Incorporation, Inc., 28 P.3d 1051, 1062 (Kan. Ct. App. 2001) (duty to\n\nread policy).\n\n Regardless, the parties failed to produce the application at trial and could only\n\nspeculate about its contents.17 At most, Worley—the individual who submitted the\n\napplication—testified that he would not have requested black-lung coverage because\n\nhe “assumed” that it would be included.18 Yet, even if Worley did request black-lung\n\ncoverage, it was still unreasonable for Woolman to assume that the resulting policy\n\nconformed to Worley’s request. As the district court noted, at $43,000 cheaper than\n\ncomparable policies offered through IMA, the policy’s bargain-bin price tag was a\n\nred flag that should have prompted further inquiry into the policy’s coverages. IMA’s\n\naccount representative for Clemens Coal even testified that he “absolutely” would\n\nhave advised Clemens Coal to investigate the price discrepancy. Yet no one\n\n\n 17\n Woolman’s reliance on the jury’s “implicit findings” to supply the\napplication’s missing terms is no more enlightening here than with the policy itself.\n 18\n To the extent Woolman argues that Worley requested black-lung coverage\nby tendering, and asking Smith to duplicate, a prior policy with black-lung coverage,\nthere’s no evidence for either proposition.\n 32\n\finvestigated further, and instead Clemens Coal selected the policy because it was\n\ncheaper than the alternatives. This willful blindness to the policy’s coverages vitiates\n\nthe reasonableness of any reliance.\n\n In short, the district court correctly rejected Woolman’s estoppel defenses\n\nbecause there’s no evidence either that Liberty Mutual represented it would procure\n\nblack-lung coverage or that Woolman reasonably relied on such a representation.19\n\nWe see no clear error in the district court’s factual findings, and our de novo review\n\nof the court’s legal analysis compels the same result.\n\n D. Expansion of Coverage\n\n The parties stipulated before trial that the Liberty Mutual policy excludes\n\ncoverage for black-lung-disease claims. Woolman urged the district court to use an\n\nestoppel theory to expand the policy’s terms to cover such claims, but the district\n\ncourt found no compelling reason to expand coverage in this case. Woolman now\n\nembarks on a protracted critique of the district court’s refusal to expand coverage.\n\n\n\n 19\n Having found that Woolman’s estoppel defenses failed on the representation\nand reliance elements, the district court had no occasion to determine whether justice\nrequired it to enforce a promise. On appeal, Woolman nevertheless urges us to estop\nLiberty Mutual from denying black-lung coverage because it would be “substantially\nunjust” to empower an insurance company to “deny coverage that a jury determined\nshould have been provided,” thereby exposing him to personal liability for Spencer’s\nblack-lung claim. Appellant’s Opening Br. at 47. Yet Woolman’s success on his\nbreach-of-duty claim doesn’t automatically entitle him to relief on his estoppel\ndefenses, especially where, as here, the jury’s determination lacked a legally\nsufficient evidentiary basis. Nor does substantial injustice automatically flow from\nthe risk of incurring liability. The absurd implication of Woolman’s entreaty is that\n“injustice” would befall every litigant who happens to be sued. We decline to\nsanction such a theory.\n 33\n\f Kansas recognizes the general rule that estoppel “cannot be used to expand . . .\n\ncoverage” beyond an insurance contract’s terms. W. Food Prods. Co. v. United States\n\nFire Ins. Co., 699 P.2d 579, 584 (Kan. Ct. App. 1985). Courts eschew this practice\n\nbecause it risks “creating coverage where none has been contracted for.” Aselco, Inc.\n\nv. Hartford Ins. Grp., 21 P.3d 1011, 1020 (Kan. Ct. App. 2001) (quoting Johnson v.\n\nStudyvin, 828 F. Supp. 877, 886 (D. Kan. 1993)). Nonetheless, the Supreme Court of\n\nKansas has, on one occasion, affirmed a court’s use of estoppel to expand coverage.\n\nHeinson v. Porter, 772 P.2d 778, 783 (Kan. 1989), overruled on other grounds by\n\nGlenn v. Fleming, 799 P.2d 79, 81 (Kan. 1990). Although the court in Heinson\n\napplied a multi-factor, totality-of-the-circumstances test,20 a panel of the Court of\n\nAppeals of Kansas has since read the decision as sanctioning expansion of coverage\n\nonly when there are affirmative representations and acts of coverage and when the\n\npolicy doesn’t “explicitly exclude the incident at issue.” See Russell v. Farmers Ins.\n\nCo., 163 P.3d 1266, 1269 (Kan. Ct. App. 2007).\n\n\n\n\n 20\n In Heinson, a homeowner’s insurance policy excluded coverage for injuries\nor damages arising out of “business pursuits.” 772 P.2d at 779–80. The insured\noperated a day care out of her home when a child under her care sustained severe\ninjuries. Though the Supreme Court of Kansas concluded that the day care was a\n“business pursuit,” it nonetheless held that the insurer was estopped from denying\ncoverage for the child’s injuries. The court cited several facts for this holding,\nincluding that the insurer knew the insured was operating a day-care business out of\nher home; that the insurer’s agent told the insured that the policy would cover the\nbusiness; that the insured’s application for insurance disclosed that she operated the\nbusiness; that the insurer didn’t express any concern over the business to the insured;\nand that the insurance policy didn’t expressly exclude day-care activity. See id. at\n783.\n 34\n\f The district court in this case, relying on Russell, found it dispositive that\n\nLiberty Mutual made no affirmative representations or acts as to black-lung-claim\n\ncoverage and that the resulting policy explicitly excluded coverage for such claims.\n\nWoolman protests that the court erred in giving dispositive weight to these two\n\nfactors, arguing that, under Heinson’s totality-of-the-circumstances test, “no factor,\n\nor two, is dispositive.” Appellant’s Reply Br. at 22. Yet many of the circumstances\n\nthat Woolman faults the district court for ignoring are untethered to the record. These\n\ninclude the chain of inferences about Smith using her “standard” procedure to\n\nduplicate coverages, as well as the assertion that Liberty Mutual knew of Clemens\n\nCoal’s insurance needs because it was “targeting” the coal industry. Appellant’s\n\nOpening Br. at 51. Though Heinson counsels a multi-factor analysis, it doesn’t\n\ncompel any consideration of factors that contradict the evidence.\n\n In any case, it defies logic to use an estoppel theory to expand coverage by\n\nconsidering all circumstances except the touchstone element of an estoppel claim: a\n\nrepresentation inducing reliance. We hesitate to create by judicial fiat an obligation\n\nthat an insurer never induced an insured to believe existed. Similarly, that the policy\n\nexplicitly excluded the disputed coverage, and that the insured acquiesced to the\n\nexclusion by purchasing the policy, strongly counsels against expanding coverage\n\nbeyond the agreed terms. Even if these two factors—representation and exclusion—\n\n\n\n\n 35\n\faren’t dispositive, they warrant substantial weight in the analysis. Certainly, the\n\ndistrict court didn’t abuse its discretion in emphasizing these factors.21\n\n Woolman tries to surmount this assessment by contending that public policy\n\nrequires an expansion of coverage to “preserve[] the rights” to which he is entitled.\n\nAppellant’s Reply Br. at 22. Woolman insists that expansion would simply “hold\n\nLiberty Mutual accountable for that which it said it would do,” i.e., procure black-\n\nlung coverage for his benefit. Id. at 23. Liberty Mutual, however, never undertook to\n\ninsure Woolman directly or to procure insurance for his benefit. Accordingly, rather\n\nthan preserve a preexisting right, Woolman is impermissibly attempting to acquire a\n\nnew one. Public policy doesn’t favor rewarding insureds who neglect to request\n\ncoverage, then years later claim that the insurer wrongfully failed to procure such\n\ncoverage when the risk actually materializes.\n\n Woolman posits a second public-policy rationale for expanding coverage: that\n\nhe “already possessed” a right to black-lung coverage because federal regulations\n\nrequire coal companies to acquire insurance with such coverage. Appellant’s Opening\n\nBr. at 55. But the regulations on which Woolman relies define a coal mine operator’s\n\nduty to obtain coverage. See 20 C.F.R. § 726.1 (“[T]he Federal Coal Mine Health and\n\n\n\n 21\n Neither party suggests a standard for our review of decisions whether to\nexpand insurance coverage. We generally review a court’s assessment of disparate,\ncase-specific factors under the deferential abuse-of-discretion standard. See, e.g.,\nMocek v. City of Albuquerque, 813 F.3d 912, 932 (10th Cir. 2015); Surefoot LC v.\nSure Foot Corp., 531 F.3d 1236, 1240 (10th Cir. 2008). We need not decide the\nissue, however, because we would affirm the district court’s assessment of the\ncircumstances relevant to expanding coverage under even a de novo standard.\n 36\n\fSafety Act . . . requires each coal mine operator . . . to secure the payment of [black-\n\nlung] benefits . . . .”); 30 U.S.C. § 933(a) (“[E]ach operator of a coal mine . . . shall\n\nsecure the payment of benefits . . . .”); see also 20 C.F.R. § 726.2(a) (“[Part 726]\n\nprovides rules directing and controlling the circumstances under which a coal mine\n\noperator shall fulfill his insurance obligations under the Act.”). The regulations\n\ncontain no similar provisions imposing an independent duty on an insurer to include\n\nblack-lung coverage in every policy issued to a coal company. There are no\n\ncompelling public-policy reasons to ignore the regulations’ plain language and shift\n\nfrom the operator to the insurance company the burden to conform insurance policies\n\nto the Act.\n\n Having considered the totality of the circumstances, we conclude that the\n\ndistrict court didn’t err in declining Woolman’s extraordinary request to expand the\n\ncoverages in the Liberty Mutual policy. Liberty Mutual never represented it would\n\nprocure the coverage that Woolman now seeks, and the policy itself clearly excludes\n\nsuch coverage. No other compelling consideration justifies rewriting the agreement—\n\ntwenty years later—to Woolman’s liking.\n\n CONCLUSION\n\n For the above reasons, we affirm the district court.\n\n\n\n\n 37\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: LIBERTY MUTUAL FIRE INSURANCE COMPANY, Plaintiff Counter Defendant - Appellee, v. Dennis WOOLMAN, Defendant Counter Plaintiff - Appellant, and Clayton Spencer, Defendant.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-01-14\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS January 14, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n LIBERTY MUTUAL FIRE INSURANCE\\n COMPANY,\\n\\n Plaintiff Counter Defendant -\\n Appellee,\\n\\n v. No. 17-3249\\n\\n DENNIS WOOLMAN,\\n\\n Defendant Counter Plaintiff -\\n Appellant,\\n\\n and\\n\\n CLAYTON SPENCER,\\n\\n Defendant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Kansas\\n (D.C. No. 2:14-CV-02332-CM)\\n _________________________________\\n\\nWesley J. Carrillo (Christopher M. Napolitano with him on the briefs), of Ensz & Jester\\nP.C., Kansas City, Missouri, for Defendant-Appellant.\\n\\nBruce A. Moothart (Charlie J. Harris, Jr., with him on the brief), of Seyferth Blumenthal\\n& Harris LLC, Kansas City, Missouri, for Plaintiff-Appellee.\\n _________________________________\\n\\nBefore TYMKOVICH, Chief Judge, HOLMES, and PHILLIPS, Circuit Judges.\\n _________________________________\\n\\nPHILLIPS, Circuit Judge.\\n\\f _________________________________\\n\\n The Federal Coal Mine Health and Safety Act of 1969, as amended by the\\n\\nBlack Lung Benefits Act (the Act), 30 U.S.C. §§ 901–945, requires coal-mine\\n\\noperators to provide benefits to miners whose contraction of pneumoconiosis—i.e.,\\n\\n“black lung” disease—from prolonged exposure to coal dust renders them totally\\n\\ndisabled. To comply with the Act, coal-mine operators must purchase a worker’s\\n\\ncompensation and employer liability insurance policy containing an “endorsement”\\n\\nensuring coverage for black-lung-benefits claims. In this appeal, Dennis Woolman—\\n\\nformer president of The Clemens Coal Company—challenges the district court’s\\n\\ndetermination that Liberty Mutual Fire Insurance Company didn’t breach a duty to\\n\\nhim by failing to procure for Clemens Coal an insurance policy with a black-lung-\\n\\ndisease endorsement. Woolman also challenges the district court’s rejection of his\\n\\nargument that Liberty Mutual should be estopped from denying black-lung-disease\\n\\ncoverage, insisting that he relied on Liberty Mutual to provide such coverage.\\n\\nExercising jurisdiction under 28 U.S.C. § 1291, we affirm.\\n\\n BACKGROUND\\n\\n Clemens Coal operated a surface coal mine in Pittsburg, Kansas until it filed\\n\\nfor bankruptcy in 1997. Woolman served as Clemens Coal’s last president before it\\n\\nwent bankrupt. Federal law required Clemens Coal to maintain worker’s\\n\\ncompensation insurance with a special endorsement covering miners’ black-lung-\\n\\ndisease benefits. See 20 C.F.R. § 726.203(a). Failure to procure such insurance could\\n\\n\\n\\n 2\\n\\fexpose Clemens Coal’s president and its officers to individual liability for black-lung\\n\\nbenefits and for civil penalties. Id. § 726.302(c)(1)–(2).\\n\\n Woolman didn’t personally procure insurance for Clemens Coal but instead\\n\\ndelegated that responsibility to James Worley, an outside consultant. In 1996, Worley\\n\\nreceived from Deborah Smith, Liberty Mutual’s commercial sales agent, a proposal\\n\\nto provide worker’s compensation and employer liability insurance to Clemens Coal.\\n\\nAfter some discussion, Worley agreed to purchase from Liberty Mutual a package\\n\\npolicy with effective dates of November 1, 1996, to November 1, 1997.1 Not only did\\n\\nthe policy not contain a black-lung-claim endorsement, it expressly excluded\\n\\ncoverage for federal occupational disease claims, such as those arising under the Act.\\n\\n Smith had never sold insurance to a coal company and wasn’t aware of the\\n\\nindustry’s exposure to black-lung claims. Worley, for his part, had never procured\\n\\ninsurance directly from an insurance company. Instead, he ordinarily consulted a\\n\\nbroker—Insurance Management Associates, Inc. (IMA)—and compared premiums\\n\\nand coverages from several potential carriers. In this case, he selected the Liberty\\n\\nMutual policy because it was $43,000 cheaper than comparable policies offered\\n\\nthrough IMA. An IMA account representative cautioned that this significant price\\n\\ndisparity suggested that the policy provided different coverages. Worley, however,\\n\\nassumed the Liberty Mutual policy was cheaper because it wasn’t in the assigned risk\\n\\npool for Kansas, which Worley understood to have considerably higher premiums.\\n\\n\\n 1\\n Although the policy was effective until November 1, 1997, it was cancelled\\non August 1, 1997, because of non-payment.\\n 3\\n\\f In 2012, Clayton Spencer—a former Clemens Coal employee—filed a claim\\n\\nwith the United States Department of Labor (DOL) against Clemens Coal for benefits\\n\\nunder the Act. After some investigation, the DOL advised Woolman that Clemens\\n\\nCoal was uninsured for black-lung-benefits claims as of July 25, 1997—the last date\\n\\nof Spencer’s employment—and that, without such coverage, Woolman, as Clemens\\n\\nCoal’s president, could be held personally liable. Woolman promptly tendered the\\n\\nclaim to Liberty Mutual for a legal defense. Liberty Mutual responded with a\\n\\nreservation-of-rights letter, stating that it hadn’t yet determined coverage for\\n\\nSpencer’s claim but that it would provide a defense during its investigation. In a\\n\\nfollow-up letter, Liberty Mutual clarified that it would defend Clemens Coal as a\\n\\ncompany—not Woolman personally—and advised Woolman to retain his own\\n\\ncounsel.\\n\\n Liberty Mutual eventually concluded that the insurance policy doesn’t cover\\n\\nSpencer’s black-lung claim, and on July 9, 2014, it sued Clemens Coal2 and\\n\\nWoolman seeking a judicial declaration to that effect. The parties stipulated that the\\n\\npolicy, “as written,” doesn’t provide coverage for Spencer’s claim. Appellee’s Suppl.\\n\\nApp. vol. 1 at 15. Nevertheless, as an affirmative defense, Woolman asserted that\\n\\nLiberty Mutual is estopped from denying black-lung-claim coverage because he\\n\\nexpected the coverage would be included in the policy and because the policy should\\n\\n\\n\\n 2\\n The district court dismissed the claims against Clemens Coal before trial\\nbecause Clemens Coal was bankrupt and thus no longer a legal entity capable of\\nbeing sued.\\n 4\\n\\fbe construed to contain the coverages that federal law requires. Woolman also\\n\\nasserted a counterclaim against Liberty Mutual for breach of its duty to act as a\\n\\nreasonably prudent insurance agent in procuring the proper coverage for Clemens\\n\\nCoal.\\n\\n The district court conducted a jury trial on Woolman’s counterclaim and a\\n\\nbench trial on his estoppel defenses. During the jury trial, the parties offered little\\n\\ndirect evidence of the circumstances surrounding Worley and Smith’s transaction to\\n\\nprocure insurance. Indeed, neither Worley nor Smith recalled the transaction, and\\n\\nWoolman, who admittedly wasn’t involved, had “no idea” what transpired.\\n\\nAppellant’s App. vol. 5 at 828:3. Smith resorted to testifying that, when selling\\n\\ninsurance, she ordinarily relied on the client to inform her of its required coverages.\\n\\nYet neither Smith nor Worley recalled discussing a need for black-lung-claim\\n\\ncoverage. And, while both Woolman and Worley testified that they intended to\\n\\nprocure whatever coverages were required by law, they admitted that they didn’t read\\n\\nthe policy to verify that it included such coverages; instead, they just assumed it did.\\n\\n Smith also testified that it was her “standard” practice to determine coverage\\n\\nneeds by reviewing the client’s expiring policy, though she regularly consulted other\\n\\nresources as many clients declined to share their prior policies. Id. vol. 4 at 585:1.\\n\\nWorley, in turn, testified that he would have permitted Smith to copy the coverages\\n\\nin Clemens Coal’s expiring policy from Hartford Underwriters Insurance Company.\\n\\nYet Smith didn’t recall reviewing the Hartford policy, and Worley didn’t recall\\n\\nsharing it. Regardless, the parties could only speculate as to the coverages that Smith\\n\\n 5\\n\\fmay have copied from the Hartford policy because it couldn’t be located at trial.3\\n\\nFurther, Liberty Mutual proffered evidence that, in a 1996 reservation-of-rights letter\\n\\nto Clemens Coal regarding a previous black-lung claim, Hartford questioned whether\\n\\nthe policy covered such claims.\\n\\n Lacking direct evidence of Worley and Smith’s transaction, Woolman urged\\n\\nthe jury to find that Liberty Mutual failed to exercise reasonable care in procuring\\n\\ninsurance based on the following series of inferences: (i) that Worley intended to\\n\\nacquire, and therefore requested, black-lung-claim coverage; (ii) that Worley\\n\\ntendered the expiring Hartford policy for Smith to review; (iii) that the policy\\n\\ncontained a black-lung-claim endorsement; and (iv) that Smith, following her\\n\\n“standard” practice, agreed to duplicate that coverage for Clemens Coal. Id. vol. 4 at\\n\\n585:1. Liberty Mutual countered that there was insufficient evidence for these\\n\\ninferences, and at the close of Woolman’s case-in-chief, it moved for judgment as a\\n\\nmatter of law under Rule 50 of the Federal Rules of Civil Procedure. The district\\n\\ncourt took the motion under advisement and permitted additional briefing.\\n\\n Woolman requested that the district court instruct the jury that his breach-of-\\n\\nduty counterclaim required proof (i) that Liberty Mutual undertook to procure\\n\\nworker’s compensation insurance for Clemens Coal; (ii) that Liberty Mutual failed to\\n\\nexercise appropriate skill, care, and diligence in that undertaking; and (iii) that\\n\\n\\n\\n 3\\n Only the policy’s “Change in Information Page” was produced, and it didn’t\\nindicate whether the policy had a black-lung-claim endorsement. Appellee’s Suppl.\\nApp. vol. 2 at 40.\\n 6\\n\\fWoolman suffered damages as a result. The court rejected Woolman’s request and,\\n\\ninstead, instructed the jury to determine whether Liberty Mutual breached a duty that\\n\\nit owed directly to Woolman as its “client.” Id. vol. 2 at 225–26. Woolman objected\\n\\nand asked for an instruction that Liberty Mutual owed him a duty “as the President of\\n\\nClemens Coal,” but the court overruled the objection. Id. vol. 5 at 907:23.\\n\\n The jury returned a verdict for Woolman on his counterclaim, awarding him\\n\\n$18,000 in damages. The district court, however, set aside the verdict and granted\\n\\nLiberty Mutual’s motion for judgment as a matter of law, concluding that Liberty\\n\\nMutual didn’t owe a duty to Woolman. Liberty Mut. Fire Ins. Co. v. Clemens Coal\\n\\nCo., 2016 WL 5817073, at *2 (D. Kan. Oct. 4, 2016). Months later, the court issued\\n\\nfindings of fact and conclusions of law regarding Woolman’s estoppel defenses. See\\n\\nLiberty Mut. Fire Ins. Co. v. Clemens Coal Co., 250 F. Supp. 3d 825, 832–39 (D.\\n\\nKan. 2017). Finding no evidence that Liberty Mutual had represented it would\\n\\nprocure black-lung-claim coverage for Woolman or that Woolman justifiably relied\\n\\non such representations, the court ruled against Woolman on the estoppel defenses\\n\\nand entered judgment in Liberty Mutual’s favor on its declaratory judgment claim.\\n\\nId. at 839.\\n\\n Woolman filed a post-trial motion to alter or amend the court’s judgment or, in\\n\\nthe alternative, for a new trial on his estoppel defenses. The court denied the motion.\\n\\nWoolman timely appealed, challenging the counterclaim and estoppel rulings as well\\n\\nas aspects of the court’s denial of his request for post-trial relief.\\n\\n\\n\\n 7\\n\\f DISCUSSION\\n\\n We first address Woolman’s argument that the district court improperly\\n\\ngranted Liberty Mutual’s motion for judgment as a matter of law on his breach-of-\\n\\nduty counterclaim. We then turn to Woolman’s argument that Liberty Mutual should\\n\\nbe judicially estopped from contesting that it owed him a duty. Finally, we address\\n\\nWoolman’s challenges to the district court’s ruling on his equitable and promissory\\n\\nestoppel defenses.\\n\\nI. Woolman’s Breach-of-Duty Counterclaim\\n\\n We review de novo a grant of judgment as a matter of law under Rule 50,\\n\\napplying the same standards as the district court. Elm Ridge Expl. Co., LLC v. Engle,\\n\\n721 F.3d 1199, 1216 (10th Cir. 2013). “All reasonable inferences are drawn in favor\\n\\nof the nonmoving party and this court does ‘not make credibility determinations or\\n\\nweigh the evidence.’” Stewart v. Adolph Coors Co., 217 F.3d 1285, 1288 (10th Cir.\\n\\n2000) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150\\n\\n(2000)). Judgment as a matter of law is appropriate only if a “reasonable jury would\\n\\nnot have a legally sufficient evidentiary basis” to find for the opposing party.\\n\\nFed. R. Civ. P. 50(a)(1); see also Finley v. United States, 82 F.3d 966, 968 (10th Cir.\\n\\n1996) (“[T]he evidence [must] point[] but one way and [be] susceptible to no\\n\\nreasonable inferences which may support the opposing party’s position.”) (quoting\\n\\nQ.E.R., Inc. v. Hickerson, 880 F.2d 1178, 1180 (10th Cir. 1989) (per curiam)).\\n\\n\\n\\n\\n 8\\n\\f A. The “Exercise Care” Duty\\n\\n This is an action for failure to procure insurance, not an action for breach of\\n\\nthe insurance contract itself. Kansas courts refer to insurance agents’ “exercise care\\n\\nduty” in such circumstances. Marshel Invs., Inc. v. Cohen, 634 P.2d 133, 141 (Kan.\\n\\nCt. App. 1981). Under Kansas law, the general rule is that “an insurance agent or\\n\\nbroker who undertakes to procure insurance for another owes to the client the duty to\\n\\nexercise the skill, care and diligence that would be exercised by a reasonably prudent\\n\\nand competent insurance agent or broker acting under the same circumstances.” Id.\\n\\nAn action for breach of this duty sounds in both contract and tort because “the duty is\\n\\nboth an implied contractual term of the undertaking (contract duty) and a part of the\\n\\nfiduciary duty owed the client by reason of the principal-agent relationship arising\\n\\nout of the undertaking (tort duty).” Id. at 142.\\n\\n On appeal, Woolman argues that, although his breach-of-duty counterclaim\\n\\nsounds in both tort and contract, the district court “ignored the contractual nature” of\\n\\nthe claim. Appellant’s Opening Br. at 18. Woolman misreads the court’s analysis.\\n\\nThe court expressly rejected Woolman’s contract theory, reasoning that Liberty\\n\\nMutual didn’t undertake to procure insurance for Woolman as its client or to make\\n\\nthe insurance contract for his benefit. That the court referenced a “negligence\\n\\ncounterclaim,” see Liberty Mut., 2016 WL 5817073, at *2, doesn’t vitiate its\\n\\nsubstantive contractual analysis, cf. Appellant’s Opening Br. at 18 (arguing that the\\n\\nreference “demonstrates the [court’s] misapplication of the claim”).\\n\\n\\n\\n 9\\n\\f Woolman also contends that the district court “invaded the province of the\\n\\njury” when it determined, as a matter of law, that Liberty Mutual didn’t owe him a\\n\\nduty sounding in contract. Appellant’s Opening Br. at 18. In his view, the jury was\\n\\n“capable and required” to make that determination because the existence of a contract\\n\\nduty entails a factual inquiry into whether the parties formed an agreement to procure\\n\\ninsurance. Id. Woolman is doubly wrong. In the first instance, “whether a duty exists\\n\\nis a question of law” for the court to decide. Deal v. Bowman, 188 P.3d 941, 946\\n\\n(Kan. 2008) (brackets omitted) (quoting Nero v. Kan. State Univ., 861 P.2d 768, 772\\n\\n(Kan. 1993)). Even if the jury made a predicate factual finding that a contract exists,\\n\\nwhether Liberty Mutual owed Woolman a duty in connection with that contract is a\\n\\nquestion of law. And second, regardless, factual findings are not impervious to\\n\\njudicial scrutiny on a Rule 50 motion simply because the jury is the factfinder. To the\\n\\ncontrary, Rule 50 requires the court to interrogate the facts to determine whether a\\n\\n“legally sufficient evidentiary basis” exists to find for a party on a given issue. See\\n\\nFed. R. Civ. P. 50(a)(1).\\n\\n In short, the district court didn’t exceed its authority in holding, as a matter of\\n\\nlaw, that Liberty Mutual didn’t owe a contractual duty to Woolman. We now turn to\\n\\nthe substantive question whether judgment as a matter of law was appropriate as to\\n\\nWoolman’s breach-of-duty counterclaim.\\n\\n B. Contractual Breach\\n\\n Woolman advances two contract-based theories for why Liberty Mutual owed\\n\\nhim a duty to exercise care in procuring insurance: (i) that Liberty Mutual agreed to\\n\\n 10\\n\\fprocure insurance for him directly as its client; and (ii) that he was an intended third-\\n\\nparty beneficiary of Liberty Mutual’s agreement to procure insurance for Clemens\\n\\nCoal. The district court rejected both theories, finding no evidence either that\\n\\nWoolman and Liberty Mutual had a contractual relationship or that Clemens Coal\\n\\nand Liberty Mutual intended to procure insurance for Woolman’s benefit. We take\\n\\nthese issues in turn.\\n\\n 1. Evidence of a Direct Contractual Relationship between\\n Liberty Mutual and Woolman\\n\\n To resolve Woolman’s first theory, we must determine whether a reasonable\\n\\njury, viewing the evidence in the light most favorable to Woolman, could conclude\\n\\nthat Liberty Mutual and Woolman formed a “contract to procure insurance.” See\\n\\nCasas v. Farmers Ins. Exch., 130 P.3d 1201, 1209 (Kan. Ct. App. 2005). In assessing\\n\\nwhether such an agreement exists, we apply “the general rules pertaining to the law\\n\\nof contracts,” Marker v. Preferred Fire Ins. Co., 506 P.2d 1163, 1168 (Kan. 1973),\\n\\nincluding the requirements of mutual assent to and consideration for the bargain, see\\n\\nUnified Sch. Dist. No. 446 v. Sandoval, 286 P.3d 542, 549 (Kan. 2012). The record in\\n\\nthis case is bereft of evidence supporting either requirement.4\\n\\n\\n 4\\n Because we conclude that Liberty Mutual didn’t manifest its assent to\\nprocure insurance for Woolman, we needn’t reach the question whether Woolman\\nprovided consideration for the bargain. In any case, Woolman doesn’t proffer any\\nevidence on that score. Ordinarily, the consideration for an agent’s undertaking to\\nprocure insurance is the agent’s expectation of pecuniary gain when the proposed\\ninsured pays the policy’s premium. See Marker, 506 P.2d at 1168. Here, no evidence\\nsuggests that Woolman personally—rather than Clemens Coal—would have paid the\\npremium for the coverage that he sought. Accordingly, even if the parties mutually\\nassented to procure such coverage, no binding contract exists.\\n 11\\n\\f At the outset, there’s no evidence that Woolman requested insurance from\\n\\nLiberty Mutual or that Liberty Mutual undertook to insure him. Woolman admittedly\\n\\nwasn’t involved in negotiating the policy and didn’t instruct Worley to request any\\n\\ncoverages on his behalf. That Woolman, as Clemens Coal’s president, subjectively\\n\\ndesired coverage to indemnify himself from liability for black-lung claims doesn’t\\n\\nevince mutual assent with Liberty Mutual to procure such coverage.5 Indeed, there’s\\n\\nno evidence that Liberty Mutual was even aware of Woolman’s need for black-lung-\\n\\nclaim coverage. Regardless, Clemens Coal, not Woolman, was the client for whom\\n\\nLiberty Mutual undertook to procure insurance.\\n\\n Lacking evidence of an express agreement, Woolman asserts that Liberty\\n\\nMutual implicitly agreed to procure insurance for him. In effect, he reasons that, as\\n\\nthe individual with responsibility for Clemens Coal’s actions, he was Liberty\\n\\nMutual’s true “client.” See id. (“[R]easonable implication can be used to determine\\n\\nwho the client is[.]”). It is hornbook law, however, that an implied-in-fact contract\\n\\ndoesn’t exist absent evidence of the parties’ “mutual intent to contract.” Mai v.\\n\\nYoutsey, 646 P.2d 475, 479 (Kan. 1982); see also Smith v. Amoco Prod. Co., 31 P.3d\\n\\n255, 265 (Kan. 2001) (“[An implied contract] is the product of agreement, although it\\n\\n\\n\\n\\n 5\\n Woolman suggests that an agreement to procure insurance for him requires\\nonly that he “selected and relied upon Liberty Mutual.” See Appellant’s Reply Br. at\\n2. Although probative of his estoppel defenses, Woolman’s reliance is irrelevant to\\nthe question whether he and Liberty Mutual had a binding contract to procure\\ninsurance. As with any contract, parties to an agreement to procure insurance must\\nmutually assent to its terms. Unilateral reliance doesn’t create a contract.\\n 12\\n\\fis not expressed in words.”). Liberty Mutual’s intent to contract with Clemens Coal\\n\\ndoesn’t equate to an intent to contract with its officers.\\n\\n Perhaps recognizing this, Woolman suggests that his status as the “client” is\\n\\nirrelevant to whether Liberty Mutual owed him a duty to exercise care. See\\n\\nAppellant’s Opening Br. at 23. Woolman essentially argues that the duty attaches\\n\\nregardless of whether Liberty Mutual contracted to procure insurance for him\\n\\nbecause Liberty Mutual should have undertaken to insure him.6 Yet Kansas law is\\n\\nclear: an insurance agent “owes to the client” the duty to exercise care. Marshel, 634\\n\\nP.2d at 141 (emphasis added); see also Marker, 506 P.2d at 1169 (noting that a\\n\\nfailure to procure insurance requires that “the relationship of broker and client has\\n\\nbeen established with mutual obligations arising from that relationship”). Absent\\n\\nevidence of an agent-client relationship, Liberty Mutual wasn’t contractually bound\\n\\nto procure insurance for Woolman.\\n\\n 2. Evidence that Clemens Coal and Liberty Mutual Intended to\\n Procure Insurance for Woolman’s Benefit\\n\\n Woolman’s assertion that he is an intended beneficiary of Liberty Mutual and\\n\\nClemens Coal’s agreement to procure insurance similarly fails. Under Kansas law,\\n\\n“parties are presumed to contract for themselves, and their intent that a third person\\n\\n\\n 6\\n Woolman further elaborates that, had Liberty Mutual procured the proper\\ninsurance, the policy “would have made Woolman a party as an insured under the\\nblack lung endorsement.” See Appellant’s Opening Br. at 23. This puts the cart\\nbefore the horse. Whether Woolman would have been a party to a hypothetical\\ninsurance contract has no bearing on whether he was a party to an agreement to\\nprocure such insurance. And regardless, an insured party isn’t necessarily a\\ncontracting party.\\n 13\\n\\freceive a direct benefit must be clearly expressed in the contract.” Byers v. Snyder,\\n\\n237 P.3d 1258, 1265 (Kan. Ct. App. 2010); see also In re Shevling, 97 P.3d 1036,\\n\\n1040 (Kan. 2004) (same). An individual claiming third-party-beneficiary status has\\n\\nthe burden of showing the existence of a “provision in the contract that operates to\\n\\nhis benefit.” State ex rel. Stovall v. Reliance Ins. Co., 107 P.3d 1219, 1231 (Kan.\\n\\n2005) (quoting Hartford Fire Ins. Co. v. W. Fire Ins. Co., 597 P.2d 622, 632 (Kan.\\n\\n1979)). A reviewing court, in turn, applies “general rules for construction of\\n\\ncontracts” in assessing a third-party-beneficiary claim. Byers, 237 P.3d at 1265.\\n\\n Woolman doesn’t allege that Liberty Mutual and Clemens Coal had a written\\n\\ncontract to procure insurance for his benefit. Rather, he asserts that they had an oral\\n\\nagreement, an implicit condition of which was that Liberty Mutual procure coverage\\n\\nto indemnify him from liability for black-lung-benefits claims. Woolman thus inverts\\n\\nthe ordinary standard of proof for third-party-beneficiary claims: rather than identify\\n\\nan express contractual provision that operates to his direct benefit, he contends that\\n\\nthe agreement to procure insurance for Clemens Coal implicitly guaranteed that the\\n\\npolicy would contain such a provision.7 Kansas law, however, doesn’t permit a third\\n\\nparty to enforce a contract on an unspoken promise of future beneficence. Instead,\\n\\nthe contract itself must explicitly and directly benefit the third party. See Fasse v.\\n\\nLower Heating & Air Conditioning, Inc., 736 P.2d 930, 932 (Kan. 1987).\\n\\n\\n 7\\n Woolman faults the district court for ignoring the distinction between the\\ncontract to procure insurance and the insurance policy itself. Yet the distinction is one\\nwithout a material difference. Woolman adduced no evidence at trial that any agreement\\n“clearly expressed” an intent to benefit him. Cf. Fasse, 736 P.2d at 932.\\n 14\\n\\f Regardless, even assuming Woolman could enforce an implicit agreement to\\n\\nprocure insurance for his benefit, there’s no evidence that the parties reached such an\\n\\nagreement. “[L]ess strict proof is required for an oral agreement to procure insurance\\n\\nthan for a contract of insurance.” Marshel, 634 P.2d at 142. Indeed, evidence that the\\n\\nparties expressly assented to all the agreement’s terms is unnecessary, as many terms\\n\\ncan be established by “[r]easonable implication.” Id. An implied contract to procure\\n\\ninsurance, however, requires that the client provide “sufficiently definite directions”\\n\\nfor the agent to “consummate the final insurance contract” and that the agent “know\\n\\nor have ready access to the information needed to procure the insurance or be able to\\n\\nimply the terms from prior dealings.” See Casas, 130 P.3d at 1210 (quoting Harris v.\\n\\nAlbrecht, 86 P.3d 728, 731, 732 (Utah 2004)).\\n\\n Woolman doesn’t seriously contend that either he or Worley gave Smith\\n\\n“sufficiently definite directions” with respect to the need to insure him against black-\\n\\nlung claims. To the contrary, Woolman testified at trial that he wasn’t involved in the\\n\\ntransaction and that he didn’t instruct Worley to obtain any specific coverages from\\n\\nSmith. Worley, in turn, testified that he didn’t request black-lung coverage because\\n\\nhe “assumed” it would be included. It is of no moment that Woolman and Worley’s\\n\\n“intent” was to procure insurance that would benefit Woolman, see Appellant’s\\n\\nOpening Br. at 13 (citing Appellant’s App. vol. 5 at 795:18–796:3, 801:5–6; id. vol. 6\\n\\nat 964:7–12), because they never communicated that intent to Smith.\\n\\n Similarly, there’s no evidence that Smith knew the “information needed to\\n\\nprocure” black-lung-claim coverage. See Casas, 130 P.3d at 1210. At trial, Smith\\n\\n 15\\n\\ftestified that she’d never sold insurance to a coal company and that she wasn’t aware\\n\\nof either the Act or black-lung disease when she sold the policy to Clemens Coal.\\n\\nWoolman replies on appeal that Smith must have been “well-apprised” of Clemens\\n\\nCoal’s coverage needs because Liberty Mutual specifically targeted the coal industry.\\n\\nOpening Br. at 51. Woolman’s only evidence for this assertion is a Liberty Mutual\\n\\nproforma in which Clemens Coal is listed as a “Prospect” and a box is checked for\\n\\n“Target Market.” Appellant’s App. vol. 7 at 1113. Yet an isolated checkmark, devoid\\n\\nof substantive elaboration, reveals nothing about Smith’s or Liberty Mutual’s\\n\\nknowledge of black-lung-claim coverage. And regardless, Smith testified that the\\n\\ncheckmark was likely inadvertent and may not have reflected an actual campaign to\\n\\ntarget coal companies.\\n\\n Woolman nevertheless argues that, by soliciting business from a “known coal\\n\\ncompany,” Liberty Mutual contemplated that the contract to procure insurance would\\n\\n“incorporate[] the ‘well-known’ standards” associated with such companies.\\n\\nAppellant’s Opening Br. at 22 (quoting Marshel, 634 P.2d at 141). Woolman asserts\\n\\nthat coverage shielding a coal company’s president from liability for black-lung-\\n\\ndisease benefits is a “well-known” standard because the Act has for decades imposed\\n\\npersonal liability for such benefits. Appellant’s Opening Br. at 22. Smith, however,\\n\\nwasn’t aware of this purported standard because she had no experience selling\\n\\ninsurance to a coal company. An agent contemplates the incorporation of standards\\n\\n\\n\\n\\n 16\\n\\fthat are known within the agent’s “field of expertise,” Marshel, 634 P.2d at 142, not\\n\\nstandards about which the agent has no knowledge.8\\n\\n Finally, there’s no evidence that Smith had “ready access to the information\\n\\nneeded to procure” black-lung-claim coverage. See Casas, 130 P.3d at 1210 (quoting\\n\\nHarris, 86 P.3d at 732). Woolman’s argument to the contrary relies on an implausible\\n\\nchain of inferences: that Smith would have asked to review, and Worley would have\\n\\ntendered, Clemens Coal’s expiring Hartford insurance policy; that the Hartford\\n\\npolicy, according to the IMA broker who procured it, would have contained a black-\\n\\nlung-claim endorsement; and that Smith, following her “standard” procedure, would\\n\\nhave duplicated that endorsement. See Appellant’s Opening Br. at 21–22 (quoting\\n\\nAppellant’s App. vol. 5 at 584:16–585:12, 587:1–5). The evidence adduced at trial\\n\\ndoesn’t support these inferences. Worley didn’t recall sharing the Hartford policy,\\n\\nand Smith didn’t recall receiving it; insufficient portions of the policy were produced\\n\\nto confirm its black-lung-claim coverage, and Hartford previously questioned such\\n\\ncoverage; and Smith testified that duplicating an expiring policy was just one of\\n\\nmany ways that she determined coverage. It is unreasonable to infer from this\\n\\nevidence that Worley shared, and Smith duplicated, an insurance policy with black-\\n\\n\\n\\n\\n 8\\n Woolman insists that the contract to procure insurance must have\\nincorporated well-known standards because his and Worley’s “intent was to be in\\ncompliance with the law in procuring insurance.” Appellant’s Opening Br. at 22. But\\nsuch subjective intent doesn’t somehow impute to Smith any knowledge of a standard\\nrequiring insurance for a coal company’s president—much less a reciprocal intent to\\nbenefit the president.\\n 17\\n\\flung-claim coverage—regardless of what the parties purportedly would have done\\n\\nand what the Hartford policy would have contained.\\n\\n Nonetheless, even assuming Smith followed her standard procedure and\\n\\nundertook to replicate the Hartford policy’s black-lung endorsement, that undertaking\\n\\nsuggests only that Smith intended to provide the same coverages that Clemens Coal\\n\\nenjoyed with its prior carrier, not that Smith intended to benefit Woolman personally.\\n\\nWoolman counters that, by undertaking to procure a black-lung endorsement, Smith\\n\\nnecessarily intended to directly benefit him “by eliminating his personal liability” for\\n\\nblack-lung claims. Appellant’s Reply Br. at 9.9 According to Woolman, it is\\n\\nsufficient that he would be an “identifiable beneficiary” of the endorsement. Id.10 Yet\\n\\njust because the endorsement would operate to Woolman’s benefit doesn’t mean that\\n\\nSmith intended to benefit Woolman. At most, the benefit would be incidental to and\\n\\n\\n\\n 9\\n Woolman stresses that the generic black-lung endorsement, set forth in 20\\nC.F.R. § 726.203(a), references the Act’s personal-liability provisions, including\\nthose applicable to a coal company’s president, see, e.g., 30 U.S.C. § 933(d). At\\nmost, this reference alerts the contracting parties that the black-lung endorsement\\nwould shield the president from personal liability. But “[k]nowledge that a contract\\nwill benefit a third party is not intent to benefit the third party.” Noller v. GMC Truck\\n& Coach Div., 772 P.2d 271, 275 (Kan. 1989).\\n 10\\n Woolman goes so far as to suggest that, because the purpose of insurance is\\nto “minimize a risk,” anyone “who would realize the mitigation or elimination of the\\nrisk” is an insurance policy’s intended beneficiary. Appellant’s Reply Br. at 8. This\\nargument ignores the “intent” requirement entirely, enshrining a per se rule that\\nwould bestow third-party-beneficiary status on anyone whose risk an insurance\\ncontract happens to mitigate. A third-party beneficiary, however, is “one who the\\ncontracting parties intended should receive a direct benefit from the contract,” see\\nMartin v. Edwards, 548 P.2d 779, 784–85 (Kan. 1976), not one who happens to\\nbenefit from the contract, see In re Shevling, 97 P.3d at 1040.\\n 18\\n\\fnot the direct object of the endorsement, the primary purpose of which is to insure\\n\\nminers who contract black-lung disease.\\n\\n In short, there’s no evidence that the parties intended—impliedly or\\n\\notherwise—to procure black-lung-claim insurance for Woolman’s direct benefit.\\n\\nClemens Coal didn’t give Liberty Mutual any directions regarding a need to procure\\n\\nsuch coverage, and Liberty Mutual didn’t already know of or have access to the\\n\\ninformation needed to procure it. Even Woolman’s “standard procedure” chain of\\n\\ninferences suggests, at most, that Liberty Mutual intended to procure black-lung-\\n\\nclaim coverage for Clemens Coal as a company. Although Liberty Mutual may have\\n\\nowed Clemens Coal a duty to “exercise care” in that undertaking, it doesn’t follow\\n\\nthat it owed a separate duty to Woolman in his personal capacity.\\n\\n C. Tortious Breach\\n\\n Woolman devotes much of his time fighting an uphill battle on the breach-of-\\n\\ncontract front while leaving his tort theory relatively underdeveloped. His argument\\n\\nthat Liberty Mutual owed him a duty sounding in tort reduces to the proposition that,\\n\\nas Clemens Coal’s president, he is a foreseeable plaintiff because the Act makes him\\n\\npersonally liable for uninsured black-lung benefits. He further contends that the\\n\\nprobability of harm—i.e., that he would be held personally liable—is foreseeable\\n\\nbecause “the risk is delineated by law[] and claims for black lung disease are\\n\\ncommon among coal companies.” Appellant’s Reply Br. at 10.\\n\\n This analysis misses the point. Regardless of whether Woolman is a\\n\\nforeseeable plaintiff under an ordinary negligence analysis, his foreseeability, alone,\\n\\n 19\\n\\fdoesn’t give rise to a duty to exercise care in procuring insurance. The Court of\\n\\nAppeals of Kansas explained in Marshel that the duty arises in tort as “part of the\\n\\nfiduciary duty owed the client by reason of the principal-agent relationship arising\\n\\nout of the undertaking” to procure insurance. 634 P.2d at 142. The Court of Appeals\\n\\nhas since read Marshel as holding that “a tort duty only arises when there is a\\n\\ncontractual undertaking by the agent” for the client. Duncan v. Janosik, Inc., 203\\n\\nP.3d 88 (Kan. Ct. App. 2009) (unpublished table decision). As a result, “when there\\n\\nis no contract duty between the agent and client, . . . there is no basis from which a\\n\\ntort duty may arise.” Id. Our conclusion that Liberty Mutual didn’t owe Woolman a\\n\\ncontract duty thus forecloses the possibility that it owed him a duty sounding in tort.\\n\\nII. The Judicial Estoppel Doctrine\\n\\n In a last-ditch attempt to salvage his breach-of-duty counterclaim, Woolman\\n\\nasserts that Liberty Mutual should be judicially estopped from disputing that it owed\\n\\nhim a duty because it took inconsistent positions on the issue in the district court and\\n\\nobtained an unfair advantage as a result. Woolman initially asserted judicial estoppel\\n\\nin his post-trial motion to alter or amend the district court’s judgment. Because\\n\\nWoolman could have, but did not, raise the issue before judgment, the district court\\n\\ndeclined to alter or amend its judgment on that basis. On appeal, Woolman argues\\n\\nthat this decision “resulted in manifest injustice and was clear error.” Appellant’s\\n\\nOpening Br. at 29.\\n\\n Judicial estoppel “is an equitable doctrine invoked by a court at its discretion.”\\n\\nNew Hampshire v. Maine, 532 U.S. 742, 750 (2001) (quoting Russell v. Rolfs, 893\\n\\n 20\\n\\fF.2d 1033, 1037 (9th Cir. 1990)). We therefore review the district court’s judicial-\\n\\nestoppel decision for abuse of discretion. Bradford v. Wiggins, 516 F.3d 1189, 1193\\n\\n(10th Cir. 2008). “A court abuses its discretion only ‘when it makes a clear error of\\n\\njudgment, exceeds the bounds of permissible choice, or when its decision is arbitrary,\\n\\ncapricious or whimsical, or results in a manifestly unreasonable judgment.’” Eastman\\n\\nv. Union Pac. R.R., 493 F.3d 1151, 1156 (10th Cir. 2007) (quoting United States v.\\n\\nNickl, 427 F.3d 1286, 1300 (10th Cir. 2005)).\\n\\n The judicial-estoppel doctrine’s purpose is to “prevent improper use of judicial\\n\\nmachinery” by parties attempting to “deliberately chang[e] positions according to the\\n\\nexigencies of the moment.” Queen v. TA Operating, LLC, 734 F.3d 1081, 1087 (10th\\n\\nCir. 2013) (quoting New Hampshire, 532 U.S. at 749–50). The doctrine’s\\n\\napplicability generally turns on whether a party’s later position is “clearly\\n\\ninconsistent” with its former position; whether the party successfully persuaded the\\n\\ncourt to accept its previous position, such that the court’s later acceptance of an\\n\\ninconsistent position would “create ‘the perception that either the first or the second\\n\\ncourt was misled’”; and whether the party would derive an unfair advantage unless\\n\\nestopped. New Hampshire, 532 U.S. at 750–51 (internal quotation marks omitted)\\n\\n(first quoting United States v. Hook, 195 F.3d 299, 306 (7th Cir. 1999); then quoting\\n\\nEdwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir. 1982)). The analysis is\\n\\nultimately fact-specific, however, and requires no “inflexible prerequisites.” Id. at\\n\\n751.\\n\\n\\n\\n 21\\n\\f Woolman argues that judicial estoppel is warranted in this case for three\\n\\nprimary reasons. He asserts, first, that Liberty Mutual waived its right to dispute that\\n\\nit owed him a duty when it admitted in its answer to his counterclaim that he was the\\n\\n“real party in interest” to the claim. Appellant’s Opening Br. at 29–30. Second, he\\n\\ncontends that Liberty Mutual took “contrary position[s]” on whether it owed him a\\n\\nduty and on whether he must prove a duty independent of Liberty Mutual’s\\n\\nobligations to Clemens Coal. Id. at 30. And third, he contends that Liberty Mutual\\n\\ngained an “unfair advantage” by neglecting to contest the existence of a duty until\\n\\nlate in the litigation. Appellant’s Reply Br. at 14. All three arguments fail.\\n\\n First, Liberty Mutual’s admission that Woolman is the real party in interest to\\n\\nassert the breach-of-duty counterclaim has no bearing on the claim’s merits. The real\\n\\nparty in interest is simply “the person who possesses the right sought to be enforced.”\\n\\nO’Donnell v. Fletcher, 681 P.2d 1074, 1076 (Kan. Ct. App. 1984). An entitlement to\\n\\nenforce a right, however, “neither enlarges nor restricts a party’s substantive right to\\n\\nrecover in a particular action.” Id. at 1077. Hence, even if Woolman is the “real party\\n\\nin interest” to the counterclaim, he still must demonstrate a substantive right to\\n\\nrecover on the claim, including by proving that Liberty Mutual owed him a duty.\\n\\nLiberty Mutual didn’t somehow waive that obligation.11\\n\\n\\n\\n 11\\n Woolman adds that Liberty Mutual failed to timely raise, and thus waived,\\nany “objection based on [an] alleged failure to have the action prosecuted in the name\\nof the real party in interest.” Appellant’s Opening Br. at 30 (quoting O’Donnell, 681\\nP.2d at 1077). This is a strawman, because Liberty Mutual doesn’t purport to raise\\nsuch an objection. Liberty Mutual disputes that it owed Woolman a duty, not that\\n 22\\n\\f Second, Liberty Mutual never took a contrary position on the existence of a\\n\\nduty. Woolman argues that Liberty Mutual initially “assumed” it owed him a duty,\\n\\nAppellant’s Opening Br. at 31, citing Liberty Mutual’s assertion in the pretrial order\\n\\nthat it “did not breach any assumed duty to Woolman in the issuance of the Liberty\\n\\nMutual Policy,” Appellant’s App. vol. 1 at 96. Yet “assumed,” in this context, is an\\n\\nadjective meaning “not true” or “supposed.” It is not, as Woolman suggests, a\\n\\ntransitive verb denoting an “acceptance” or “undertaking” of a position. That is,\\n\\nLiberty Mutual didn’t accept that it owed Woolman a duty but rather asserted that it\\n\\ndidn’t breach a nonexistent duty to him. Liberty Mutual’s later position that it didn’t\\n\\nowe Woolman a duty isn’t inconsistent with this earlier position. See New\\n\\nHampshire, 532 U.S. at 750.12\\n\\n Liberty Mutual also never took a contrary position on whether Woolman must\\n\\nprove that it owed him a duty independent of any duty that it owed to Clemens Coal.\\n\\nWoolman stresses that Liberty Mutual didn’t make the argument that he must prove\\n\\nan independent duty until after the close of his case-in-chief. That Liberty Mutual\\n\\nwaited to raise the argument, however, doesn’t mean it ever adopted a contrary\\n\\n\\nWoolman has the capacity to assert the breach-of-duty counterclaim. Woolman\\nconflates these distinct concepts.\\n 12\\n As further evidence that Liberty Mutual initially admitted it owed him duty,\\nWoolman notes that Liberty Mutual failed to assert absence of a duty “as a defense”\\nin the pretrial order. Appellant’s Opening Br. at 31. He emphasizes that Liberty\\nMutual asserted a defense to the breach element of his counterclaim but didn’t\\nspecifically contest the duty element. Yet Liberty Mutual’s silence on the duty\\nelement isn’t an admission as to that element, much less a “clearly inconsistent”\\nposition.\\n 23\\n\\fposition. Indeed, Woolman’s only evidence of inconsistency is that Liberty Mutual\\n\\ndidn’t raise the independent-duty argument in its summary judgment briefing but\\n\\ninstead focused solely on whether it breached a duty to Clemens Coal. Yet Liberty\\n\\nMutual’s omission of the argument doesn’t constitute an affirmative position to the\\n\\ncontrary. Cf. Appellant’s Reply Br. at 14 (reading the omission as Liberty Mutual\\n\\ntaking the view that “Woolman need not prove a duty independent of that owed to\\n\\nClemens Coal”).13\\n\\n Third, and last, Liberty Mutual didn’t obtain an “unfair advantage” by failing\\n\\nto contest that it owed Woolman a duty until its motion for judgment as a matter of\\n\\nlaw. See New Hampshire, 532 U.S. at 751. Woolman reasons that he “had no\\n\\nexpectation [duty] was an issue to be tried,” because Liberty Mutual didn’t dispute\\n\\nthat it owed him a duty in its answer, in the pretrial order, or in its summary-\\n\\njudgment briefing. Appellant’s Opening Br. at 30. This is tantamount to arguing that\\n\\na party needn’t prove an element of its claim unless the other party disputes it. Yet\\n\\nWoolman had the burden of proving that a legal duty existed as part of his prima\\n\\nfacie case, regardless of whether Liberty Mutual raised the issue. Accordingly,\\n\\nLiberty Mutual’s initial failure to contest the issue didn’t prejudice Woolman.\\n\\n Woolman’s evidence, in brief, falls short of demonstrating entitlement to\\n\\njudicial estoppel—much less that the district court abused its discretion in refusing to\\n\\n\\n\\n 13\\n Because Liberty Mutual didn’t espouse inconsistent positions on the\\nindependent-duty question, we needn’t address whether Liberty Mutual persuaded the\\ndistrict court to adopt an earlier, contrary position.\\n 24\\n\\festop Liberty Mutual from contesting that it owed Woolman a duty. We therefore\\n\\ndecline to disturb the district court’s judgment.\\n\\nIII. Woolman’s Estoppel Defenses\\n\\n Woolman advances several arguments in support of his entitlement to\\n\\nequitable and promissory estoppel. As a threshold issue, he contends that the district\\n\\ncourt erred in declining to submit to the jury a series of interrogatories that related to\\n\\nhis estoppel defenses. He then argues that the district court, in resolving his estoppel\\n\\ndefenses, failed to bind itself to factual findings implicit in the jury’s verdict in the\\n\\ncounterclaim trial. Next, he asserts that the district court misapplied the law to his\\n\\nestoppel defenses. And finally, he contends that the district court erred in failing to\\n\\nuse estoppel to expand the Liberty Mutual policy’s coverages beyond its terms.\\n\\n A. The Special Interrogatories\\n\\n Before trial, Woolman asked the district court to submit his estoppel defenses\\n\\nto the jury as well as several special interrogatories regarding the defenses. The court\\n\\ndenied both requests, and instead limited the trial to the breach-of-duty counterclaim.\\n\\nOn appeal, Woolman contends that the court erred in thus limiting the trial and that,\\n\\ninstead, it should have asked the jury to make factual findings that would have\\n\\ncontrolled the court’s resolution of the estoppel defenses. He avers that the absence\\n\\nof such explicit guidance from the jury’s interrogatory answers resulted in the court\\n\\nmaking findings in its estoppel ruling that were contrary to findings implicit in the\\n\\njury’s verdict.\\n\\n\\n\\n 25\\n\\f We review de novo whether, “as a whole, the district court’s jury instructions\\n\\ncorrectly stated the governing law and provided the jury with an ample understanding\\n\\nof the issues and applicable standards.” Martinez v. Caterpillar, Inc., 572 F.3d 1129,\\n\\n1132 (10th Cir. 2009) (quoting World Wide Ass’n of Specialty Programs v. Pure,\\n\\nInc., 450 F.3d 1132, 1139 (10th Cir. 2006)). But we review a decision whether to\\n\\ngive a particular instruction only for abuse of discretion. Webb v. ABF Freight Sys.,\\n\\nInc., 155 F.3d 1230, 1248 (10th Cir. 1998). If the instructions “as a whole adequately\\n\\nstate[] the law, the refusal to give a particular requested instruction is not an abuse of\\n\\ndiscretion.” United States v. Suntar Roofing, Inc., 897 F.2d 469, 473 (10th Cir.\\n\\n1990).\\n\\n Here, the jury instructions as a whole adequately stated the governing law\\n\\nregarding Kansas’ exercise-care duty. The district court didn’t abuse its discretion in\\n\\ndeclining to further instruct the jury about defenses not at issue in the trial. The court\\n\\nspecifically bifurcated the litigation, submitting Woolman’s legal counterclaim to the\\n\\njury while reserving for itself resolution of Woolman’s equitable defenses. Given this\\n\\nbifurcation, an instruction on equitable defenses not at issue in the jury trial risked\\n\\nmisleading the jury in its “understanding of the issues and law applicable to the case\\n\\nbefore it.” United States v. Laughlin, 26 F.3d 1523, 1528 (10th Cir. 1994). The court\\n\\nproperly declined to obfuscate the issues in this manner.14\\n\\n\\n 14\\n To the extent Woolman challenges the district court’s refusal to submit the\\nestoppel defenses to the jury, that argument also fails. “Entitlement to a jury trial is a\\nquestion of law which we review de novo.” Bowdry v. United Airlines, Inc., 58 F.3d\\n1483, 1489 (10th Cir. 1995). Unless a statute speaks to a jury-trial right, we look to\\n 26\\n\\f B. The Jury’s “Implicit Findings”\\n\\n Woolman stakes much of his estoppel argument on the assertion that the\\n\\ndistrict court, in ruling on his estoppel defenses, erred in failing to bind itself to the\\n\\n“implicit findings” that the jury made regarding his breach-of-duty counterclaim and\\n\\nin failing to consider “alternative factual findings” that the jury could have made to\\n\\nsupport its verdict. See Appellant’s Opening Br. at 34. Woolman insists that when, as\\n\\nhere, legal and equitable claims are “commingled,” the Seventh Amendment\\n\\nprohibits a court from “reaching factual conclusions contrary to those explicitly or\\n\\nimplicitly reached by the jury.” Id. at 33. Liberty Mutual counters that a court must\\n\\nbind itself only to the jury’s findings on “common questions of fact” and argues that,\\n\\nin this case, no common factual issues bound the court. Appellee’s Br. at 26–27\\n\\n(quoting Colo. Visionary Acad. v. Medtronic, Inc., 397 F.3d 867, 875 (10th Cir.\\n\\n2005)).\\n\\n In an appeal from a bench trial, we review the district court’s factual findings\\n\\nfor clear error. Keys Youth Servs., Inc. v. City of Olathe, 248 F.3d 1267, 1274 (10th\\n\\nCir. 2001). Where the case also involves a jury trial, we must “take into account the\\n\\nbinding effect” on the trial court of the jury’s findings as to issues of fact common to\\n\\nboth the legal and the equitable claims. Smith v. Diffee Ford–Lincoln–Mercury, Inc.,\\n\\n\\n\\nthe Seventh Amendment to determine entitlement to a jury trial. See Tull v. United\\nStates, 481 U.S. 412, 417 & n.3 (1987). Though the Seventh Amendment guarantees\\nthe right to a jury trial in any suit involving “legal rights,” this guarantee doesn’t\\nextend to “equitable rights.” Bowdry, 58 F.3d at 1489. Hence, Woolman had no\\nentitlement to a jury trial on his equitable defenses.\\n 27\\n\\f298 F.3d 955, 965 (10th Cir. 2002). This ensures that litigants’ Seventh Amendment\\n\\njury-trial rights aren’t rendered meaningless on such common factual issues. See id.\\n\\n(quoting Ag Servs. of Am. v. Nielsen, 231 F.3d 726, 730 (10th Cir. 2000)). The jury’s\\n\\nfindings, however, bind the court only to the extent that “fact issues central to a claim\\n\\nare decided by a jury upon evidence that would justify its conclusion.” Brinkman v.\\n\\nDep’t of Corrections, 21 F.3d 370, 372–73 (10th Cir. 1994).\\n\\n Here, the parties’ protracted focus on the jury’s implicit findings is largely\\n\\nacademic, because no factual findings bound the district court in its disposition of\\n\\nWoolman’s estoppel defenses. Our previous discussion makes clear that the jury’s\\n\\nverdict for Woolman on his counterclaim lacked competent “evidence that would\\n\\njustify its conclusion.” See id. at 372. And regardless, before issuing its estoppel\\n\\ndecision, the district court granted Liberty Mutual’s motion for judgment as a matter\\n\\nof law and set aside the verdict—thus nullifying any factual findings explicit or\\n\\nimplicit in the verdict. See Appellant’s App. vol. 2 at 340 (“The court sets aside the\\n\\njury’s verdict and award . . . .”). The jury’s factual findings, of course, couldn’t\\n\\nconstrain the court if the verdict wasn’t intact. Cf. Nielsen, 231 F.3d at 731\\n\\n(concluding that, because the trial court “left intact the jury’s verdict and its explicit\\n\\nfindings and those necessarily implicit from the verdict,” those findings bound the\\n\\ncourt).\\n\\n Because the district court properly set aside the verdict as contrary to the\\n\\nevidence under Federal Rule of Civil Procedure 50, we needn’t inquire further\\n\\nwhether the court made factual findings inconsistent with the jury’s implicit\\n\\n 28\\n\\ffindings.15 We therefore turn to the court’s substantive analysis of Woolman’s\\n\\nestoppel defenses.\\n\\n C. The Substantive Law of Estoppel\\n\\n Woolman protests the district court’s purported misapplication of the law in\\n\\ndisposing of his equitable- and promissory-estoppel defenses. In an appeal from a\\n\\nbench trial, we review the district court’s conclusions of law de novo. Sanpete Water\\n\\nConservancy Dist. v. Carbon Water Conservancy Dist., 226 F.3d 1170, 1177–78\\n\\n(10th Cir. 2000). We continue to review the court’s factual findings for clear error.\\n\\nId. at 1177.\\n\\n A party asserting equitable estoppel must show that another party, “by its acts,\\n\\nrepresentations, admissions, or silence when it had a duty to speak, induced [the first\\n\\nparty] to believe certain facts existed,” and also that the first party “rightfully relied\\n\\n\\n\\n 15\\n Woolman would have us conclude that the jury made a series of findings in\\nreaching its verdict, but as Woolman recites them, these findings are implausible and\\nignore mountains of evidence to the contrary. According to Woolman, the findings\\ninclude that Worley gave Smith a copy of the Hartford policy; that the policy\\ncontained a black-lung endorsement; that Smith followed her “standard” procedure to\\ncopy the endorsement; and that Clemens Coal didn’t have actual notice that the\\nLiberty Mutual policy differed in its coverages from policies offered through IMA.\\nNone of these findings have a reasonable basis in the record—and thus, the jury\\ncouldn’t have implied them in its verdict.\\n Woolman’s misguided analysis relies on the flawed notion that the jury could\\nnot have reached its verdict without implying these findings. But a simpler rationale\\nfor the verdict accords with the weight of the evidence and doesn’t rely on a complex\\nweb of unlikely implicit findings: in determining that Liberty Mutual breached a duty\\nto Woolman, the jury concluded that Liberty Mutual negligently failed to familiarize\\nitself with and procure the “proper coverage” that coal companies like Clemens Coal\\nrequire. This rationale is entirely consistent with the district court’s resolution of\\nWoolman’s estoppel defenses.\\n 29\\n\\fand acted upon such belief.” Mut. Life Ins. Co. of N.Y. v. Bernasek, 682 P.2d 667,\\n\\n730 (Kan. 1984) (quoting Cosgrove v. Young, 642 P.2d 75, 84 (Kan. 1982)).\\n\\nEquitable estoppel therefore “has two fundamental elements: misrepresentation and\\n\\ndetrimental reliance.” United Cities Gas Co. v. Brock Expl. Co., 995 F. Supp. 1284,\\n\\n1297 (D. Kan. 1998). Promissory estoppel similarly requires a representation\\n\\ninducing reliance; the difference being that, for promissory estoppel, “the\\n\\nrepresentation is promissory rather than to an existing fact.” Marker, 506 P.2d at\\n\\n1170.16\\n\\n Here, the district court found no evidence that Liberty Mutual represented or\\n\\npromised to procure black-lung coverage. To prove the representation element,\\n\\nWoolman falls back on the jury’s “implicit finding[]” that Smith “promise[d] to\\n\\nduplicate Clemens Coal’s previous coverage in conformity with her standard\\n\\nprocedure.” Appellant’s Opening Br. at 43. Our rejection of the “implicit findings”\\n\\nthesis above predetermines our rejection of it here. See discussion, supra Section\\n\\nIII.B. Furthermore, even drawing all reasonable inferences in Woolman’s favor,\\n\\nthere’s no evidence that Smith promised to duplicate coverages or that she even\\n\\ninformed Worley that her “standard” procedure involved duplication. Nevertheless,\\n\\neven if Smith promised to duplicate the Hartford policy’s coverages, there’s no\\n\\nevidence that she promised to duplicate black-lung coverage. The suggestion that\\n\\nSmith made such a promise presupposes that she received a copy of the Hartford\\n\\n\\n 16\\n The promissory “representation” also needn’t be a “misrepresentation.” See\\nBouton v. Byers, 321 P.3d 780, 792 (Kan. Ct. App. 2014) (clarifying this distinction).\\n 30\\n\\fpolicy and that the policy had black-lung coverage to duplicate—two facts with no\\n\\nbasis in the record.\\n\\n Lacking evidence of a promise to duplicate coverage, Woolman argues that\\n\\nSmith “had a duty to inform Clemens Coal if she could not duplicate coverage” and\\n\\nthat Smith’s silence in the face of that duty induced Clemens Coal to believe that she\\n\\nundertook to duplicate coverage. Appellant’s Opening Br. at 43. This inverts the\\n\\nanalysis. Absent evidence that Clemens Coal asked Smith to duplicate coverage or\\n\\nthat Smith promised to do so, Smith’s “silence” represented nothing. Clemens Coal\\n\\ncouldn’t construe such silence as a promise that Smith would duplicate coverage if\\n\\nthere was no baseline expectation that Smith would duplicate coverage. Accordingly,\\n\\nSmith had no “duty” to inform Clemens Coal that she couldn’t duplicate coverage.\\n\\nThe necessary predicate to an obligation to correct an earlier representation is, after\\n\\nall, the existence of an earlier representation. Woolman’s estoppel defenses fail on\\n\\nthe first element. See Ram Co. v. Estate of Kobbeman, 696 P.2d 936, 944 (Kan. 1985)\\n\\n(stating that an estoppel claim fails if any essential element “is lacking or is not\\n\\nsatisfactorily proved”) (quoting 28 Am. Jur. 2d Estoppel & Waiver §§ 35–36 (1964)).\\n\\n Assuming Woolman could prove that Smith promised to duplicate coverage,\\n\\nhe nevertheless fails to show that he reasonably relied on that promise. The district\\n\\ncourt found that any reliance wasn’t reasonable, in part, because Woolman failed to\\n\\nread the insurance policy, which unambiguously excluded coverage for black-lung\\n\\nclaims. On appeal, Woolman doesn’t dispute that he didn’t read the policy but asserts\\n\\nthat he had a duty to read only the “application for insurance.” Appellant’s Opening\\n\\n 31\\n\\fBr. at 44. He contends that “an insured has a right to assume the policy provides the\\n\\ncoverage requested—here, the same coverages as The Hartford policy . . . .” Id. Yet\\n\\nWoolman doesn’t even claim that he read the insurance application. Any purported\\n\\ndistinction between the policy and the application is thus immaterial, because\\n\\nWoolman cannot credibly claim reliance on either document. See Chism v. Protective\\n\\nLife Ins. Co., 234 P.3d 780, 792 (Kan. 2010) (duty to read application); Jones v.\\n\\nReliable Sec. Incorporation, Inc., 28 P.3d 1051, 1062 (Kan. Ct. App. 2001) (duty to\\n\\nread policy).\\n\\n Regardless, the parties failed to produce the application at trial and could only\\n\\nspeculate about its contents.17 At most, Worley—the individual who submitted the\\n\\napplication—testified that he would not have requested black-lung coverage because\\n\\nhe “assumed” that it would be included.18 Yet, even if Worley did request black-lung\\n\\ncoverage, it was still unreasonable for Woolman to assume that the resulting policy\\n\\nconformed to Worley’s request. As the district court noted, at $43,000 cheaper than\\n\\ncomparable policies offered through IMA, the policy’s bargain-bin price tag was a\\n\\nred flag that should have prompted further inquiry into the policy’s coverages. IMA’s\\n\\naccount representative for Clemens Coal even testified that he “absolutely” would\\n\\nhave advised Clemens Coal to investigate the price discrepancy. Yet no one\\n\\n\\n 17\\n Woolman’s reliance on the jury’s “implicit findings” to supply the\\napplication’s missing terms is no more enlightening here than with the policy itself.\\n 18\\n To the extent Woolman argues that Worley requested black-lung coverage\\nby tendering, and asking Smith to duplicate, a prior policy with black-lung coverage,\\nthere’s no evidence for either proposition.\\n 32\\n\\finvestigated further, and instead Clemens Coal selected the policy because it was\\n\\ncheaper than the alternatives. This willful blindness to the policy’s coverages vitiates\\n\\nthe reasonableness of any reliance.\\n\\n In short, the district court correctly rejected Woolman’s estoppel defenses\\n\\nbecause there’s no evidence either that Liberty Mutual represented it would procure\\n\\nblack-lung coverage or that Woolman reasonably relied on such a representation.19\\n\\nWe see no clear error in the district court’s factual findings, and our de novo review\\n\\nof the court’s legal analysis compels the same result.\\n\\n D. Expansion of Coverage\\n\\n The parties stipulated before trial that the Liberty Mutual policy excludes\\n\\ncoverage for black-lung-disease claims. Woolman urged the district court to use an\\n\\nestoppel theory to expand the policy’s terms to cover such claims, but the district\\n\\ncourt found no compelling reason to expand coverage in this case. Woolman now\\n\\nembarks on a protracted critique of the district court’s refusal to expand coverage.\\n\\n\\n\\n 19\\n Having found that Woolman’s estoppel defenses failed on the representation\\nand reliance elements, the district court had no occasion to determine whether justice\\nrequired it to enforce a promise. On appeal, Woolman nevertheless urges us to estop\\nLiberty Mutual from denying black-lung coverage because it would be “substantially\\nunjust” to empower an insurance company to “deny coverage that a jury determined\\nshould have been provided,” thereby exposing him to personal liability for Spencer’s\\nblack-lung claim. Appellant’s Opening Br. at 47. Yet Woolman’s success on his\\nbreach-of-duty claim doesn’t automatically entitle him to relief on his estoppel\\ndefenses, especially where, as here, the jury’s determination lacked a legally\\nsufficient evidentiary basis. Nor does substantial injustice automatically flow from\\nthe risk of incurring liability. The absurd implication of Woolman’s entreaty is that\\n“injustice” would befall every litigant who happens to be sued. We decline to\\nsanction such a theory.\\n 33\\n\\f Kansas recognizes the general rule that estoppel “cannot be used to expand . . .\\n\\ncoverage” beyond an insurance contract’s terms. W. Food Prods. Co. v. United States\\n\\nFire Ins. Co., 699 P.2d 579, 584 (Kan. Ct. App. 1985). Courts eschew this practice\\n\\nbecause it risks “creating coverage where none has been contracted for.” Aselco, Inc.\\n\\nv. Hartford Ins. Grp., 21 P.3d 1011, 1020 (Kan. Ct. App. 2001) (quoting Johnson v.\\n\\nStudyvin, 828 F. Supp. 877, 886 (D. Kan. 1993)). Nonetheless, the Supreme Court of\\n\\nKansas has, on one occasion, affirmed a court’s use of estoppel to expand coverage.\\n\\nHeinson v. Porter, 772 P.2d 778, 783 (Kan. 1989), overruled on other grounds by\\n\\nGlenn v. Fleming, 799 P.2d 79, 81 (Kan. 1990). Although the court in Heinson\\n\\napplied a multi-factor, totality-of-the-circumstances test,20 a panel of the Court of\\n\\nAppeals of Kansas has since read the decision as sanctioning expansion of coverage\\n\\nonly when there are affirmative representations and acts of coverage and when the\\n\\npolicy doesn’t “explicitly exclude the incident at issue.” See Russell v. Farmers Ins.\\n\\nCo., 163 P.3d 1266, 1269 (Kan. Ct. App. 2007).\\n\\n\\n\\n\\n 20\\n In Heinson, a homeowner’s insurance policy excluded coverage for injuries\\nor damages arising out of “business pursuits.” 772 P.2d at 779–80. The insured\\noperated a day care out of her home when a child under her care sustained severe\\ninjuries. Though the Supreme Court of Kansas concluded that the day care was a\\n“business pursuit,” it nonetheless held that the insurer was estopped from denying\\ncoverage for the child’s injuries. The court cited several facts for this holding,\\nincluding that the insurer knew the insured was operating a day-care business out of\\nher home; that the insurer’s agent told the insured that the policy would cover the\\nbusiness; that the insured’s application for insurance disclosed that she operated the\\nbusiness; that the insurer didn’t express any concern over the business to the insured;\\nand that the insurance policy didn’t expressly exclude day-care activity. See id. at\\n783.\\n 34\\n\\f The district court in this case, relying on Russell, found it dispositive that\\n\\nLiberty Mutual made no affirmative representations or acts as to black-lung-claim\\n\\ncoverage and that the resulting policy explicitly excluded coverage for such claims.\\n\\nWoolman protests that the court erred in giving dispositive weight to these two\\n\\nfactors, arguing that, under Heinson’s totality-of-the-circumstances test, “no factor,\\n\\nor two, is dispositive.” Appellant’s Reply Br. at 22. Yet many of the circumstances\\n\\nthat Woolman faults the district court for ignoring are untethered to the record. These\\n\\ninclude the chain of inferences about Smith using her “standard” procedure to\\n\\nduplicate coverages, as well as the assertion that Liberty Mutual knew of Clemens\\n\\nCoal’s insurance needs because it was “targeting” the coal industry. Appellant’s\\n\\nOpening Br. at 51. Though Heinson counsels a multi-factor analysis, it doesn’t\\n\\ncompel any consideration of factors that contradict the evidence.\\n\\n In any case, it defies logic to use an estoppel theory to expand coverage by\\n\\nconsidering all circumstances except the touchstone element of an estoppel claim: a\\n\\nrepresentation inducing reliance. We hesitate to create by judicial fiat an obligation\\n\\nthat an insurer never induced an insured to believe existed. Similarly, that the policy\\n\\nexplicitly excluded the disputed coverage, and that the insured acquiesced to the\\n\\nexclusion by purchasing the policy, strongly counsels against expanding coverage\\n\\nbeyond the agreed terms. Even if these two factors—representation and exclusion—\\n\\n\\n\\n\\n 35\\n\\faren’t dispositive, they warrant substantial weight in the analysis. Certainly, the\\n\\ndistrict court didn’t abuse its discretion in emphasizing these factors.21\\n\\n Woolman tries to surmount this assessment by contending that public policy\\n\\nrequires an expansion of coverage to “preserve[] the rights” to which he is entitled.\\n\\nAppellant’s Reply Br. at 22. Woolman insists that expansion would simply “hold\\n\\nLiberty Mutual accountable for that which it said it would do,” i.e., procure black-\\n\\nlung coverage for his benefit. Id. at 23. Liberty Mutual, however, never undertook to\\n\\ninsure Woolman directly or to procure insurance for his benefit. Accordingly, rather\\n\\nthan preserve a preexisting right, Woolman is impermissibly attempting to acquire a\\n\\nnew one. Public policy doesn’t favor rewarding insureds who neglect to request\\n\\ncoverage, then years later claim that the insurer wrongfully failed to procure such\\n\\ncoverage when the risk actually materializes.\\n\\n Woolman posits a second public-policy rationale for expanding coverage: that\\n\\nhe “already possessed” a right to black-lung coverage because federal regulations\\n\\nrequire coal companies to acquire insurance with such coverage. Appellant’s Opening\\n\\nBr. at 55. But the regulations on which Woolman relies define a coal mine operator’s\\n\\nduty to obtain coverage. See 20 C.F.R. § 726.1 (“[T]he Federal Coal Mine Health and\\n\\n\\n\\n 21\\n Neither party suggests a standard for our review of decisions whether to\\nexpand insurance coverage. We generally review a court’s assessment of disparate,\\ncase-specific factors under the deferential abuse-of-discretion standard. See, e.g.,\\nMocek v. City of Albuquerque, 813 F.3d 912, 932 (10th Cir. 2015); Surefoot LC v.\\nSure Foot Corp., 531 F.3d 1236, 1240 (10th Cir. 2008). We need not decide the\\nissue, however, because we would affirm the district court’s assessment of the\\ncircumstances relevant to expanding coverage under even a de novo standard.\\n 36\\n\\fSafety Act . . . requires each coal mine operator . . . to secure the payment of [black-\\n\\nlung] benefits . . . .”); 30 U.S.C. § 933(a) (“[E]ach operator of a coal mine . . . shall\\n\\nsecure the payment of benefits . . . .”); see also 20 C.F.R. § 726.2(a) (“[Part 726]\\n\\nprovides rules directing and controlling the circumstances under which a coal mine\\n\\noperator shall fulfill his insurance obligations under the Act.”). The regulations\\n\\ncontain no similar provisions imposing an independent duty on an insurer to include\\n\\nblack-lung coverage in every policy issued to a coal company. There are no\\n\\ncompelling public-policy reasons to ignore the regulations’ plain language and shift\\n\\nfrom the operator to the insurance company the burden to conform insurance policies\\n\\nto the Act.\\n\\n Having considered the totality of the circumstances, we conclude that the\\n\\ndistrict court didn’t err in declining Woolman’s extraordinary request to expand the\\n\\ncoverages in the Liberty Mutual policy. Liberty Mutual never represented it would\\n\\nprocure the coverage that Woolman now seeks, and the policy itself clearly excludes\\n\\nsuch coverage. No other compelling consideration justifies rewriting the agreement—\\n\\ntwenty years later—to Woolman’s liking.\\n\\n CONCLUSION\\n\\n For the above reasons, we affirm the district court.\\n\\n\\n\\n\\n 37\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":379,"cells":{"id":{"kind":"number","value":4581546,"string":"4,581,546"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee, v. Marvin LOPEZ-AGUILAR, Defendant - Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Lopez-Aguilar"},"decision_date":{"kind":"string","value":"2019-01-15"},"docket_number":{"kind":"string","value":"17-2121"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Bacharach, Baldock, Ebel\", \"parties\": \"\", \"opinions\": [{\"author\": \"BACHARACH, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS January 15, 2019\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n UNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v. No. 17-2121\\n\\n MARVIN LOPEZ-AGUILAR,\\n\\n Defendant - Appellant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of New Mexico\\n (D.C. Nos. 1:16-CV-00668-WJ-CG and 1:09-CR-02962-WJ-1)\\n _________________________________\\n\\nSubmitted on the briefs * :\\n\\nJames D. Tierney, Acting United States Attorney, and C. Paige Messec,\\nAssistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-\\nAppellee.\\n\\nBenjamin A. Gonzales, Assistant Federal Public Defender, Albuquerque,\\nNew Mexico, for Defendant-Appellant.\\n _________________________________\\n\\nBefore BACHARACH, BALDOCK, and EBEL, Circuit Judges.\\n __________________________________\\n\\n\\n\\n\\n*\\n Oral argument would not materially aid our consideration of the\\nappeal, so we have decided the appeal based on the briefs. See Order\\n(Nov. 2, 2018).\\n\\fBACHARACH, Circuit Judge.\\n _________________________________\\n\\n This appeal grew out of a plea agreement in which the defendant\\n\\nwaived his right to collaterally challenge his conviction. Despite the\\n\\nwaiver, the defendant collaterally challenged the conviction under 28\\n\\nU.S.C. § 2255. The district court dismissed the challenge without ruling on\\n\\nthe waiver, holding instead that the defendant’s underlying claim failed on\\n\\nthe merits. On appeal, the government defends this ruling, adding that we\\n\\nshould also affirm based on the defendant’s waiver of a collateral\\n\\nchallenge.\\n\\n The defendant doesn’t question the enforceability or applicability of\\n\\nthe waiver. Instead, he contends that the government forfeited the waiver\\n\\nby failing to invoke it in district court. We reject this contention because\\n\\nthe government never had an opportunity to assert the waiver in district\\n\\ncourt. As a result, we affirm based on the waiver. 1\\n\\n1. The defendant waived his right to collaterally challenge the\\n conviction.\\n\\n The defendant pleaded guilty based on an agreement with the\\n\\ngovernment. The agreement included a waiver of the right to collaterally\\n\\nchallenge the conviction:\\n\\n\\n\\n1\\n Given the applicability of the waiver, we need not address the merits\\nof the defendant’s claim.\\n\\n 2\\n\\f The Defendant is aware that 28 U.S.C. § 1291 and 18 U.S.C.\\n § 3742 afford a Defendant the right to appeal a conviction and\\n the sentence imposed. Acknowledging that, the Defendant\\n knowingly waives the right to appeal the Defendant’s\\n conviction(s) and any sentence, including any order of\\n restitution, within the statutory maximum authorized by law and\\n imposed in conformity with this plea agreement. In addition, the\\n Defendant agrees to waive any collateral attack to the\\n Defendant’s conviction(s) pursuant to 28 U.S.C. § 2255, except\\n on the issue of counsel’s ineffective assistance in negotiating or\\n entering this plea or this waiver.\\n\\nR., vol. II at 33 (emphasis added).\\n\\n Despite this waiver, the defendant collaterally challenged the\\n\\nconviction by filing a motion under § 2255. The district court summarily\\n\\ndismissed the motion on the merits without directing the government to\\n\\nrespond. The defendant appeals, and the government argues that we should\\n\\nenforce the waiver of a collateral challenge.\\n\\n To enforce a waiver of a collateral challenge, we consider three\\n\\nelements: “(1) whether the issue appealed or challenged falls within the\\n\\nscope of the text of the waiver; (2) whether the waiver was knowingly and\\n\\nvoluntarily entered into; and (3) whether enforcing the waiver would result\\n\\nin a miscarriage of justice.” United States v. Pinson, 584 F.3d 972, 975\\n\\n(10th Cir. 2009) (citing United States v. Hahn, 359 F.3d 1315, 1325 (10th\\n\\nCir. 2004) (en banc)). The government asserts that each element is met, and\\n\\nthe defendant does not argue to the contrary. Given the absence of a\\n\\nchallenge to the presence of the three elements, we conclude that the\\n\\ndefendant waived his right to collaterally challenge the conviction.\\n\\n 3\\n\\f2. The government timely invoked the waiver.\\n\\n Though the defendant does not challenge the enforceability or\\n\\napplicability of the waiver, he argues that\\n\\n the government forfeits invocation of the waiver by failing to\\n assert it in the first instance and\\n\\n the government should have invoked the waiver in district\\n court.\\n\\nThe defendant thus contends that the government forfeited its opportunity\\n\\nto invoke the waiver. We disagree.\\n\\n We have recognized that\\n\\n waivers benefit the government by “saving the costs” of\\n prosecuting further litigation and\\n\\n such litigation should be efficiently and summarily dismissed\\n for “the government [to] receive the benefit of its bargain.”\\n\\nUnited States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc). But\\n\\nwe have also recognized that the government can forfeit waivers by failing\\n\\nto enforce them. See United States v. Calderon, 428 F.3d 928, 930–31 (10th\\n\\nCir. 2005) (declining to enforce an appellate waiver after the government\\n\\ndeclined the court’s invitation to respond); see also United States v.\\n\\nParker, 720 F.3d 781, 786 (10th Cir. 2013) (recognizing the government’s\\n\\nobligation to invoke waivers). We can assume, for the sake of argument,\\n\\nthat the government forfeits invocation of the waiver by failing to assert it\\n\\nin district court when given an opportunity to do so. But the government\\n\\n\\n\\n 4\\n\\fnever had an opportunity to assert the waiver when the case was in district\\n\\ncourt.\\n\\n In the § 2255 proceedings, the district court had two options: It could\\n\\nsummarily dismiss the defendant’s motion or order a response. See Rule\\n\\n4(b), Rules Governing Section 2255 Proceedings in the U.S. District\\n\\nCourts. Until the court ordered a response, the government didn’t need to\\n\\nfile one. See Rule 5(a), Rules Governing Section 2255 Proceedings in the\\n\\nU.S. District Courts (“The respondent is not required to answer the\\n\\n[§ 2255] motion unless a judge so orders.”). Thus, if the district court did\\n\\nnot order the government to respond to the § 2255 motion, the government\\n\\ncould raise the waiver for the first time in the appeal. See Remington v.\\n\\nUnited States, 872 F.3d 72, 77 (1st Cir. 2017) (“Under Rule 5(a) . . . the\\n\\ngovernment did not lose its right to object to Remington’s § 2255 motion\\n\\nfor the simple reason that the District Court never ordered the government\\n\\nto answer Remington’s motion.”); cf. Wiggins v. New Mexico State Supreme\\n\\nCourt Clerk, 664 F.2d 812, 817 (10th Cir. 1981) (holding that when a\\n\\ncomplaint is dismissed sua sponte before the government responds, the\\n\\ngovernment doesn’t waive the right to later assert affirmative defenses).\\n\\n Here the district court summarily dismissed the motion rather than\\n\\norder a response. Given the summary dismissal, the government had no\\n\\nopportunity to invoke the waiver in district court. So the government can\\n\\ninvoke the waiver here.\\n\\n 5\\n\\f * * *\\n\\n The government timely asserted the waiver, and the defendant does\\n\\nnot question its enforceability or applicability. We therefore affirm the\\n\\ndistrict court’s summary dismissal of the defendant’s § 2255 motion.\\n\\n\\n\\n\\n 6\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4358799/\", \"author_raw\": \"BACHARACH, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"BACHARACH"},"judge2":{"kind":"string","value":"BALDOCK"},"judge3":{"kind":"string","value":"EBEL"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4581546/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Marvin LOPEZ-AGUILAR, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 15, 2019\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v. No. 17-2121\n\n MARVIN LOPEZ-AGUILAR,\n\n Defendant - Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of New Mexico\n (D.C. Nos. 1:16-CV-00668-WJ-CG and 1:09-CR-02962-WJ-1)\n _________________________________\n\nSubmitted on the briefs * :\n\nJames D. Tierney, Acting United States Attorney, and C. Paige Messec,\nAssistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-\nAppellee.\n\nBenjamin A. Gonzales, Assistant Federal Public Defender, Albuquerque,\nNew Mexico, for Defendant-Appellant.\n _________________________________\n\nBefore BACHARACH, BALDOCK, and EBEL, Circuit Judges.\n __________________________________\n\n\n\n\n*\n Oral argument would not materially aid our consideration of the\nappeal, so we have decided the appeal based on the briefs. See Order\n(Nov. 2, 2018).\n\fBACHARACH, Circuit Judge.\n _________________________________\n\n This appeal grew out of a plea agreement in which the defendant\n\nwaived his right to collaterally challenge his conviction. Despite the\n\nwaiver, the defendant collaterally challenged the conviction under 28\n\nU.S.C. § 2255. The district court dismissed the challenge without ruling on\n\nthe waiver, holding instead that the defendant’s underlying claim failed on\n\nthe merits. On appeal, the government defends this ruling, adding that we\n\nshould also affirm based on the defendant’s waiver of a collateral\n\nchallenge.\n\n The defendant doesn’t question the enforceability or applicability of\n\nthe waiver. Instead, he contends that the government forfeited the waiver\n\nby failing to invoke it in district court. We reject this contention because\n\nthe government never had an opportunity to assert the waiver in district\n\ncourt. As a result, we affirm based on the waiver. 1\n\n1. The defendant waived his right to collaterally challenge the\n conviction.\n\n The defendant pleaded guilty based on an agreement with the\n\ngovernment. The agreement included a waiver of the right to collaterally\n\nchallenge the conviction:\n\n\n\n1\n Given the applicability of the waiver, we need not address the merits\nof the defendant’s claim.\n\n 2\n\f The Defendant is aware that 28 U.S.C. § 1291 and 18 U.S.C.\n § 3742 afford a Defendant the right to appeal a conviction and\n the sentence imposed. Acknowledging that, the Defendant\n knowingly waives the right to appeal the Defendant’s\n conviction(s) and any sentence, including any order of\n restitution, within the statutory maximum authorized by law and\n imposed in conformity with this plea agreement. In addition, the\n Defendant agrees to waive any collateral attack to the\n Defendant’s conviction(s) pursuant to 28 U.S.C. § 2255, except\n on the issue of counsel’s ineffective assistance in negotiating or\n entering this plea or this waiver.\n\nR., vol. II at 33 (emphasis added).\n\n Despite this waiver, the defendant collaterally challenged the\n\nconviction by filing a motion under § 2255. The district court summarily\n\ndismissed the motion on the merits without directing the government to\n\nrespond. The defendant appeals, and the government argues that we should\n\nenforce the waiver of a collateral challenge.\n\n To enforce a waiver of a collateral challenge, we consider three\n\nelements: “(1) whether the issue appealed or challenged falls within the\n\nscope of the text of the waiver; (2) whether the waiver was knowingly and\n\nvoluntarily entered into; and (3) whether enforcing the waiver would result\n\nin a miscarriage of justice.” United States v. Pinson, 584 F.3d 972, 975\n\n(10th Cir. 2009) (citing United States v. Hahn, 359 F.3d 1315, 1325 (10th\n\nCir. 2004) (en banc)). The government asserts that each element is met, and\n\nthe defendant does not argue to the contrary. Given the absence of a\n\nchallenge to the presence of the three elements, we conclude that the\n\ndefendant waived his right to collaterally challenge the conviction.\n\n 3\n\f2. The government timely invoked the waiver.\n\n Though the defendant does not challenge the enforceability or\n\napplicability of the waiver, he argues that\n\n the government forfeits invocation of the waiver by failing to\n assert it in the first instance and\n\n the government should have invoked the waiver in district\n court.\n\nThe defendant thus contends that the government forfeited its opportunity\n\nto invoke the waiver. We disagree.\n\n We have recognized that\n\n waivers benefit the government by “saving the costs” of\n prosecuting further litigation and\n\n such litigation should be efficiently and summarily dismissed\n for “the government [to] receive the benefit of its bargain.”\n\nUnited States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc). But\n\nwe have also recognized that the government can forfeit waivers by failing\n\nto enforce them. See United States v. Calderon, 428 F.3d 928, 930–31 (10th\n\nCir. 2005) (declining to enforce an appellate waiver after the government\n\ndeclined the court’s invitation to respond); see also United States v.\n\nParker, 720 F.3d 781, 786 (10th Cir. 2013) (recognizing the government’s\n\nobligation to invoke waivers). We can assume, for the sake of argument,\n\nthat the government forfeits invocation of the waiver by failing to assert it\n\nin district court when given an opportunity to do so. But the government\n\n\n\n 4\n\fnever had an opportunity to assert the waiver when the case was in district\n\ncourt.\n\n In the § 2255 proceedings, the district court had two options: It could\n\nsummarily dismiss the defendant’s motion or order a response. See Rule\n\n4(b), Rules Governing Section 2255 Proceedings in the U.S. District\n\nCourts. Until the court ordered a response, the government didn’t need to\n\nfile one. See Rule 5(a), Rules Governing Section 2255 Proceedings in the\n\nU.S. District Courts (“The respondent is not required to answer the\n\n[§ 2255] motion unless a judge so orders.”). Thus, if the district court did\n\nnot order the government to respond to the § 2255 motion, the government\n\ncould raise the waiver for the first time in the appeal. See Remington v.\n\nUnited States, 872 F.3d 72, 77 (1st Cir. 2017) (“Under Rule 5(a) . . . the\n\ngovernment did not lose its right to object to Remington’s § 2255 motion\n\nfor the simple reason that the District Court never ordered the government\n\nto answer Remington’s motion.”); cf. Wiggins v. New Mexico State Supreme\n\nCourt Clerk, 664 F.2d 812, 817 (10th Cir. 1981) (holding that when a\n\ncomplaint is dismissed sua sponte before the government responds, the\n\ngovernment doesn’t waive the right to later assert affirmative defenses).\n\n Here the district court summarily dismissed the motion rather than\n\norder a response. Given the summary dismissal, the government had no\n\nopportunity to invoke the waiver in district court. So the government can\n\ninvoke the waiver here.\n\n 5\n\f * * *\n\n The government timely asserted the waiver, and the defendant does\n\nnot question its enforceability or applicability. We therefore affirm the\n\ndistrict court’s summary dismissal of the defendant’s § 2255 motion.\n\n\n\n\n 6\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Marvin LOPEZ-AGUILAR, Defendant - Appellant.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-01-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS January 15, 2019\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n UNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v. No. 17-2121\\n\\n MARVIN LOPEZ-AGUILAR,\\n\\n Defendant - Appellant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of New Mexico\\n (D.C. Nos. 1:16-CV-00668-WJ-CG and 1:09-CR-02962-WJ-1)\\n _________________________________\\n\\nSubmitted on the briefs * :\\n\\nJames D. Tierney, Acting United States Attorney, and C. Paige Messec,\\nAssistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-\\nAppellee.\\n\\nBenjamin A. Gonzales, Assistant Federal Public Defender, Albuquerque,\\nNew Mexico, for Defendant-Appellant.\\n _________________________________\\n\\nBefore BACHARACH, BALDOCK, and EBEL, Circuit Judges.\\n __________________________________\\n\\n\\n\\n\\n*\\n Oral argument would not materially aid our consideration of the\\nappeal, so we have decided the appeal based on the briefs. See Order\\n(Nov. 2, 2018).\\n\\fBACHARACH, Circuit Judge.\\n _________________________________\\n\\n This appeal grew out of a plea agreement in which the defendant\\n\\nwaived his right to collaterally challenge his conviction. Despite the\\n\\nwaiver, the defendant collaterally challenged the conviction under 28\\n\\nU.S.C. § 2255. The district court dismissed the challenge without ruling on\\n\\nthe waiver, holding instead that the defendant’s underlying claim failed on\\n\\nthe merits. On appeal, the government defends this ruling, adding that we\\n\\nshould also affirm based on the defendant’s waiver of a collateral\\n\\nchallenge.\\n\\n The defendant doesn’t question the enforceability or applicability of\\n\\nthe waiver. Instead, he contends that the government forfeited the waiver\\n\\nby failing to invoke it in district court. We reject this contention because\\n\\nthe government never had an opportunity to assert the waiver in district\\n\\ncourt. As a result, we affirm based on the waiver. 1\\n\\n1. The defendant waived his right to collaterally challenge the\\n conviction.\\n\\n The defendant pleaded guilty based on an agreement with the\\n\\ngovernment. The agreement included a waiver of the right to collaterally\\n\\nchallenge the conviction:\\n\\n\\n\\n1\\n Given the applicability of the waiver, we need not address the merits\\nof the defendant’s claim.\\n\\n 2\\n\\f The Defendant is aware that 28 U.S.C. § 1291 and 18 U.S.C.\\n § 3742 afford a Defendant the right to appeal a conviction and\\n the sentence imposed. Acknowledging that, the Defendant\\n knowingly waives the right to appeal the Defendant’s\\n conviction(s) and any sentence, including any order of\\n restitution, within the statutory maximum authorized by law and\\n imposed in conformity with this plea agreement. In addition, the\\n Defendant agrees to waive any collateral attack to the\\n Defendant’s conviction(s) pursuant to 28 U.S.C. § 2255, except\\n on the issue of counsel’s ineffective assistance in negotiating or\\n entering this plea or this waiver.\\n\\nR., vol. II at 33 (emphasis added).\\n\\n Despite this waiver, the defendant collaterally challenged the\\n\\nconviction by filing a motion under § 2255. The district court summarily\\n\\ndismissed the motion on the merits without directing the government to\\n\\nrespond. The defendant appeals, and the government argues that we should\\n\\nenforce the waiver of a collateral challenge.\\n\\n To enforce a waiver of a collateral challenge, we consider three\\n\\nelements: “(1) whether the issue appealed or challenged falls within the\\n\\nscope of the text of the waiver; (2) whether the waiver was knowingly and\\n\\nvoluntarily entered into; and (3) whether enforcing the waiver would result\\n\\nin a miscarriage of justice.” United States v. Pinson, 584 F.3d 972, 975\\n\\n(10th Cir. 2009) (citing United States v. Hahn, 359 F.3d 1315, 1325 (10th\\n\\nCir. 2004) (en banc)). The government asserts that each element is met, and\\n\\nthe defendant does not argue to the contrary. Given the absence of a\\n\\nchallenge to the presence of the three elements, we conclude that the\\n\\ndefendant waived his right to collaterally challenge the conviction.\\n\\n 3\\n\\f2. The government timely invoked the waiver.\\n\\n Though the defendant does not challenge the enforceability or\\n\\napplicability of the waiver, he argues that\\n\\n the government forfeits invocation of the waiver by failing to\\n assert it in the first instance and\\n\\n the government should have invoked the waiver in district\\n court.\\n\\nThe defendant thus contends that the government forfeited its opportunity\\n\\nto invoke the waiver. We disagree.\\n\\n We have recognized that\\n\\n waivers benefit the government by “saving the costs” of\\n prosecuting further litigation and\\n\\n such litigation should be efficiently and summarily dismissed\\n for “the government [to] receive the benefit of its bargain.”\\n\\nUnited States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc). But\\n\\nwe have also recognized that the government can forfeit waivers by failing\\n\\nto enforce them. See United States v. Calderon, 428 F.3d 928, 930–31 (10th\\n\\nCir. 2005) (declining to enforce an appellate waiver after the government\\n\\ndeclined the court’s invitation to respond); see also United States v.\\n\\nParker, 720 F.3d 781, 786 (10th Cir. 2013) (recognizing the government’s\\n\\nobligation to invoke waivers). We can assume, for the sake of argument,\\n\\nthat the government forfeits invocation of the waiver by failing to assert it\\n\\nin district court when given an opportunity to do so. But the government\\n\\n\\n\\n 4\\n\\fnever had an opportunity to assert the waiver when the case was in district\\n\\ncourt.\\n\\n In the § 2255 proceedings, the district court had two options: It could\\n\\nsummarily dismiss the defendant’s motion or order a response. See Rule\\n\\n4(b), Rules Governing Section 2255 Proceedings in the U.S. District\\n\\nCourts. Until the court ordered a response, the government didn’t need to\\n\\nfile one. See Rule 5(a), Rules Governing Section 2255 Proceedings in the\\n\\nU.S. District Courts (“The respondent is not required to answer the\\n\\n[§ 2255] motion unless a judge so orders.”). Thus, if the district court did\\n\\nnot order the government to respond to the § 2255 motion, the government\\n\\ncould raise the waiver for the first time in the appeal. See Remington v.\\n\\nUnited States, 872 F.3d 72, 77 (1st Cir. 2017) (“Under Rule 5(a) . . . the\\n\\ngovernment did not lose its right to object to Remington’s § 2255 motion\\n\\nfor the simple reason that the District Court never ordered the government\\n\\nto answer Remington’s motion.”); cf. Wiggins v. New Mexico State Supreme\\n\\nCourt Clerk, 664 F.2d 812, 817 (10th Cir. 1981) (holding that when a\\n\\ncomplaint is dismissed sua sponte before the government responds, the\\n\\ngovernment doesn’t waive the right to later assert affirmative defenses).\\n\\n Here the district court summarily dismissed the motion rather than\\n\\norder a response. Given the summary dismissal, the government had no\\n\\nopportunity to invoke the waiver in district court. So the government can\\n\\ninvoke the waiver here.\\n\\n 5\\n\\f * * *\\n\\n The government timely asserted the waiver, and the defendant does\\n\\nnot question its enforceability or applicability. We therefore affirm the\\n\\ndistrict court’s summary dismissal of the defendant’s § 2255 motion.\\n\\n\\n\\n\\n 6\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":380,"cells":{"id":{"kind":"number","value":4582702,"string":"4,582,702"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Hamilton v. Northfield Insurance Company"},"decision_date":{"kind":"string","value":"2019-01-17"},"docket_number":{"kind":"string","value":"17-7049"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before TYMKOVICH, Chief Judge, McKAY, and CARSON, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"010combined\", \"text\": \"FILED\\n PUBLISH United States Court of Appeals\\n Tenth Circuit\\n UNITED STATES COURT OF APPEALS\\n January 17, 2019\\n FOR THE TENTH CIRCUIT\\n Elisabeth A. Shumaker\\n _________________________________ Clerk of Court\\n BILLY HAMILTON,\\n\\n Plaintiff - Appellant/Cross-\\n Appellee,\\n No. 17-7049\\n v. (D.C. No. 6:16-CV-00519-RAW)\\n (E.D. Okla.)\\n NORTHFIELD INSURANCE\\n COMPANY,\\n\\n Defendant - Appellee/Cross-\\n Appellant.\\n ______________________\\n\\n OKLAHOMA ASSOCIATION FOR\\n JUSTICE,\\n\\n Amicus Curiae.\\n\\n _________________________________\\n\\n ORDER\\n _________________________________\\n\\nBefore TYMKOVICH, Chief Judge, McKAY, and CARSON, Circuit Judges.\\n _________________________________\\n\\n This matter is before us on Appellant’s Petition for Rehearing En Banc\\n\\n(“Petition”). Upon careful consideration of the Petition and the amicus brief filed by the\\n\\nOklahoma Association for Justice, we sua sponte grant panel rehearing and vacate the\\n\\nopinion issued December 18, 2018. Accordingly, the Petition is denied as moot, and this\\n\\fmatter is REOPENED and ABATED pending further order of the court.\\n\\n\\n Entered for the Court,\\n ELISABETH A. SHUMAKER, Clerk\\n\\n\\n\\n by: Chris Wolpert\\n Chief Deputy Clerk\\n\\n\\n\\n\\n 2\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4359955/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"TYMKOVICH"},"judge2":{"kind":"string","value":"MCKAY"},"judge3":{"kind":"string","value":"CARSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"TYMKOVICH\": \", Chief\", \"McKAY\": \", Circuit\", \"CARSON\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4582702/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Hamilton v. Northfield Insurance Company\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n PUBLISH United States Court of Appeals\n Tenth Circuit\n UNITED STATES COURT OF APPEALS\n January 17, 2019\n FOR THE TENTH CIRCUIT\n Elisabeth A. Shumaker\n _________________________________ Clerk of Court\n BILLY HAMILTON,\n\n Plaintiff - Appellant/Cross-\n Appellee,\n No. 17-7049\n v. (D.C. No. 6:16-CV-00519-RAW)\n (E.D. Okla.)\n NORTHFIELD INSURANCE\n COMPANY,\n\n Defendant - Appellee/Cross-\n Appellant.\n ______________________\n\n OKLAHOMA ASSOCIATION FOR\n JUSTICE,\n\n Amicus Curiae.\n\n _________________________________\n\n ORDER\n _________________________________\n\nBefore TYMKOVICH, Chief Judge, McKAY, and CARSON, Circuit Judges.\n _________________________________\n\n This matter is before us on Appellant’s Petition for Rehearing En Banc\n\n(“Petition”). Upon careful consideration of the Petition and the amicus brief filed by the\n\nOklahoma Association for Justice, we sua sponte grant panel rehearing and vacate the\n\nopinion issued December 18, 2018. Accordingly, the Petition is denied as moot, and this\n\fmatter is REOPENED and ABATED pending further order of the court.\n\n\n Entered for the Court,\n ELISABETH A. SHUMAKER, Clerk\n\n\n\n by: Chris Wolpert\n Chief Deputy Clerk\n\n\n\n\n 2\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Hamilton v. Northfield Insurance Company\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-01-17\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n PUBLISH United States Court of Appeals\\n Tenth Circuit\\n UNITED STATES COURT OF APPEALS\\n January 17, 2019\\n FOR THE TENTH CIRCUIT\\n Elisabeth A. Shumaker\\n _________________________________ Clerk of Court\\n BILLY HAMILTON,\\n\\n Plaintiff - Appellant/Cross-\\n Appellee,\\n No. 17-7049\\n v. (D.C. No. 6:16-CV-00519-RAW)\\n (E.D. Okla.)\\n NORTHFIELD INSURANCE\\n COMPANY,\\n\\n Defendant - Appellee/Cross-\\n Appellant.\\n ______________________\\n\\n OKLAHOMA ASSOCIATION FOR\\n JUSTICE,\\n\\n Amicus Curiae.\\n\\n _________________________________\\n\\n ORDER\\n _________________________________\\n\\nBefore TYMKOVICH, Chief Judge, McKAY, and CARSON, Circuit Judges.\\n _________________________________\\n\\n This matter is before us on Appellant’s Petition for Rehearing En Banc\\n\\n(“Petition”). Upon careful consideration of the Petition and the amicus brief filed by the\\n\\nOklahoma Association for Justice, we sua sponte grant panel rehearing and vacate the\\n\\nopinion issued December 18, 2018. Accordingly, the Petition is denied as moot, and this\\n\\fmatter is REOPENED and ABATED pending further order of the court.\\n\\n\\n Entered for the Court,\\n ELISABETH A. SHUMAKER, Clerk\\n\\n\\n\\n by: Chris Wolpert\\n Chief Deputy Clerk\\n\\n\\n\\n\\n 2\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":381,"cells":{"id":{"kind":"number","value":4582750,"string":"4,582,750"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Hamilton v. Northfield Insurance Company"},"decision_date":{"kind":"string","value":"2019-01-17"},"docket_number":{"kind":"string","value":"17-7049"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before TYMKOVICH, Chief Judge, McKAY, and CARSON, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS January 17, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\nBILLY HAMILTON,\\n\\n Plaintiff - Appellant/Cross-Appellee,\\n\\nv. No. 17-7049\\n (D.C. No. 6:16-CV-00519-RAW)\\nNORTHFIELD INSURANCE (E.D. Okla.)\\nCOMPANY,\\n\\n Defendant - Appellee/Cross-\\n Appellant.\\n\\n------------------------------\\n\\nOKLAHOMA ASSOCIATION FOR\\nJUSTICE,\\n\\n Amicus Curiae.\\n\\n–––––––––––––––––––––––––––––––––––\\n\\nBILLY HAMILTON,\\n\\n Plaintiff - Appellee,\\n\\nv. No. 17-7055\\n (D.C. No. 6:16-CV-00519-RAW)\\nNORTHFIELD INSURANCE (E.D. Okla.)\\nCOMPANY,\\n\\n Defendant - Appellant.\\n _________________________________\\n\\n ORDER\\n _________________________________\\n\\fBefore TYMKOVICH, Chief Judge, McKAY, and CARSON, Circuit Judges.\\n _________________________________\\n\\n Notwithstanding our January 17, 2019 order sua sponte granting panel rehearing\\n\\nand vacating our December 18, 2018 opinion in 17-7049, we clarify that the opinion\\n\\nremains in effect as to the issues raised and resolved in 17-7055. The Clerk shall issue the\\n\\nmandate in 17-7055 forthwith. As stated in in our January 17, 2019 order, 17-7049 is\\n\\nreopened and remains abated.\\n\\n\\n Entered for the Court,\\n\\n ELISABETH A. SHUMAKER, Clerk\\n\\n\\n\\n by: Chris Wolpert\\n Chief Deputy Clerk\\n\\n\\n\\n\\n 2\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4360003/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"TYMKOVICH"},"judge2":{"kind":"string","value":"MCKAY"},"judge3":{"kind":"string","value":"CARSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"TYMKOVICH\": \", Chief\", \"McKAY\": \", Circuit\", \"CARSON\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4582750/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Hamilton v. Northfield Insurance Company\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 17, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\nBILLY HAMILTON,\n\n Plaintiff - Appellant/Cross-Appellee,\n\nv. No. 17-7049\n (D.C. No. 6:16-CV-00519-RAW)\nNORTHFIELD INSURANCE (E.D. Okla.)\nCOMPANY,\n\n Defendant - Appellee/Cross-\n Appellant.\n\n------------------------------\n\nOKLAHOMA ASSOCIATION FOR\nJUSTICE,\n\n Amicus Curiae.\n\n–––––––––––––––––––––––––––––––––––\n\nBILLY HAMILTON,\n\n Plaintiff - Appellee,\n\nv. No. 17-7055\n (D.C. No. 6:16-CV-00519-RAW)\nNORTHFIELD INSURANCE (E.D. Okla.)\nCOMPANY,\n\n Defendant - Appellant.\n _________________________________\n\n ORDER\n _________________________________\n\fBefore TYMKOVICH, Chief Judge, McKAY, and CARSON, Circuit Judges.\n _________________________________\n\n Notwithstanding our January 17, 2019 order sua sponte granting panel rehearing\n\nand vacating our December 18, 2018 opinion in 17-7049, we clarify that the opinion\n\nremains in effect as to the issues raised and resolved in 17-7055. The Clerk shall issue the\n\nmandate in 17-7055 forthwith. As stated in in our January 17, 2019 order, 17-7049 is\n\nreopened and remains abated.\n\n\n Entered for the Court,\n\n ELISABETH A. SHUMAKER, Clerk\n\n\n\n by: Chris Wolpert\n Chief Deputy Clerk\n\n\n\n\n 2\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Hamilton v. Northfield Insurance Company\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-01-17\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS January 17, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\nBILLY HAMILTON,\\n\\n Plaintiff - Appellant/Cross-Appellee,\\n\\nv. No. 17-7049\\n (D.C. No. 6:16-CV-00519-RAW)\\nNORTHFIELD INSURANCE (E.D. Okla.)\\nCOMPANY,\\n\\n Defendant - Appellee/Cross-\\n Appellant.\\n\\n------------------------------\\n\\nOKLAHOMA ASSOCIATION FOR\\nJUSTICE,\\n\\n Amicus Curiae.\\n\\n–––––––––––––––––––––––––––––––––––\\n\\nBILLY HAMILTON,\\n\\n Plaintiff - Appellee,\\n\\nv. No. 17-7055\\n (D.C. No. 6:16-CV-00519-RAW)\\nNORTHFIELD INSURANCE (E.D. Okla.)\\nCOMPANY,\\n\\n Defendant - Appellant.\\n _________________________________\\n\\n ORDER\\n _________________________________\\n\\fBefore TYMKOVICH, Chief Judge, McKAY, and CARSON, Circuit Judges.\\n _________________________________\\n\\n Notwithstanding our January 17, 2019 order sua sponte granting panel rehearing\\n\\nand vacating our December 18, 2018 opinion in 17-7049, we clarify that the opinion\\n\\nremains in effect as to the issues raised and resolved in 17-7055. The Clerk shall issue the\\n\\nmandate in 17-7055 forthwith. As stated in in our January 17, 2019 order, 17-7049 is\\n\\nreopened and remains abated.\\n\\n\\n Entered for the Court,\\n\\n ELISABETH A. SHUMAKER, Clerk\\n\\n\\n\\n by: Chris Wolpert\\n Chief Deputy Clerk\\n\\n\\n\\n\\n 2\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":382,"cells":{"id":{"kind":"number","value":8443850,"string":"8,443,850"},"name":{"kind":"string","value":"Billy HAMILTON, - Appellant/Cross-Appellee v. NORTHFIELD INSURANCE COMPANY, - Appellee/Cross-Appellant. Oklahoma Association for Justice, Amicus Curiae."},"name_abbreviation":{"kind":"string","value":"Hamilton v. Northfield Ins. Co."},"decision_date":{"kind":"string","value":"2019-01-17"},"docket_number":{"kind":"string","value":"No. 17-7049"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415277/\"}]}"},"judge1":{"kind":"string","value":""},"judge2":{"kind":"string","value":""},"judge3":{"kind":"string","value":""},"exactly_three_caps":{"kind":"number","value":0,"string":"0"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8443850/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Billy HAMILTON, - Appellant/Cross-Appellee v. NORTHFIELD INSURANCE COMPANY, - Appellee/Cross-Appellant. Oklahoma Association for Justice, Amicus Curiae.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Billy HAMILTON, - Appellant/Cross-Appellee v. NORTHFIELD INSURANCE COMPANY, - Appellee/Cross-Appellant. Oklahoma Association for Justice, Amicus Curiae.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-01-17\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":383,"cells":{"id":{"kind":"number","value":8443851,"string":"8,443,851"},"name":{"kind":"string","value":"Billy HAMILTON, Plaintiff-Appellant/Cross-Appellee v. NORTHFIELD INSURANCE COMPANY, Defendant-Appellee/Cross-Appellant. Oklahoma Association for Justice, Amicus Curiae. Billy Hamilton v. Northfield Insurance Company"},"name_abbreviation":{"kind":"string","value":"Hamilton v. Northfield Ins. Co."},"decision_date":{"kind":"string","value":"2019-01-17"},"docket_number":{"kind":"string","value":"No. 17-7049; No. 17-7055"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Carson, McKay, Tymkovich\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415278/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"CARSON"},"judge2":{"kind":"string","value":"MCKAY"},"judge3":{"kind":"string","value":"TYMKOVICH"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8443851/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Billy HAMILTON, Plaintiff-Appellant/Cross-Appellee v. NORTHFIELD INSURANCE COMPANY, Defendant-Appellee/Cross-Appellant. Oklahoma Association for Justice, Amicus Curiae. Billy Hamilton v. Northfield Insurance Company\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Billy HAMILTON, Plaintiff-Appellant/Cross-Appellee v. NORTHFIELD INSURANCE COMPANY, Defendant-Appellee/Cross-Appellant. Oklahoma Association for Justice, Amicus Curiae. Billy Hamilton v. Northfield Insurance Company\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-01-17\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":384,"cells":{"id":{"kind":"number","value":4582978,"string":"4,582,978"},"name":{"kind":"string","value":"MARALEX RESOURCES, INC., a Colorado Corporation; Alexis M. O'Hare; Mary C. O'Hare, Plaintiffs - Appellants, v. David BARNHARDT, in His Official Capacity as Acting Secretary of the United States Department of the Interior; The United States Department of Interior; The United States of America, Defendants - Appellees."},"name_abbreviation":{"kind":"string","value":"Maralex Res., Inc. v. Barnhardt"},"decision_date":{"kind":"string","value":"2019-01-18"},"docket_number":{"kind":"string","value":"17-1421"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Briscoe, Lucero, Matheson\", \"parties\": \"\", \"opinions\": [{\"author\": \"BRISCOE, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS January 18, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n MARALEX RESOURCES, INC., a\\n Colorado corporation; ALEXIS M.\\n O'HARE; MARY C. O'HARE,\\n\\n Plaintiffs - Appellants,\\n\\n v. No. 17-1421\\n\\n DAVID BARNHARDT, in his official\\n capacity as Acting Secretary of the United\\n States Department of the Interior; THE\\n UNITED STATES DEPARTMENT OF\\n INTERIOR; THE UNITED STATES OF\\n AMERICA,\\n\\n Defendants - Appellees.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Colorado\\n (D.C. No. 1:15-CV-01893-CMA)\\n _________________________________\\n\\nWilliam E. Zimsky, Abadie & Schill, PC, Durango, Colorado, appearing for the\\nAppellants.\\n\\nTamara N. Rountree, Attorney, Environmental and Natural Resources Division, United\\nStates Department of Justice, Washington, DC (Jeffrey H. Wood, Acting Assistant\\nAttorney General, and Eric Grant, Deputy Assistant Attorney General, United States\\nDepartment of Justice, Washington, DC; William Lazarus and John L. Smeltzer,\\nAttorneys, Environmental and Natural Resources Division, United States Department of\\nJustice, Washington, DC; and Philip C. Lowe, Rocky Mountain Regional Solicitor’s\\n\\n \\n In accordance with Fed. R. App. P. 43(c)(2), David Barnhardt is substituted\\nfor Ryan Zinke, as the respondent in this action.\\n\\fOffice, Department of the Interior, Lakewood, Colorado, with her on the brief), appearing\\nfor the Appellee.\\n _________________________________\\n\\nBefore BRISCOE, LUCERO, and MATHESON, Circuit Judges.\\n _________________________________\\n\\nBRISCOE, Circuit Judge.\\n _________________________________\\n\\n Plaintiffs Maralex Resources, Inc. (Maralex), Alexis O’Hare and Mary C.\\n\\nO’Hare (the O’Hares) filed this action against the Secretary of the Department of the\\n\\nInterior (Secretary), the Department of the Interior, and the United States seeking\\n\\nreview of a decision of the Interior Board of Land Appeals (IBLA) upholding four\\n\\nNotices of Incidents of Noncompliance that were issued by the Bureau of Land\\n\\nManagement’s (BLM’s) Tres Rios Field Office to Maralex for failing to allow a\\n\\nBLM representative to access certain oil and gas lease sites operated by Maralex on\\n\\nland owned by the O’Hares. The district court affirmed the IBLA’s decision.\\n\\nPlaintiffs now appeal.\\n\\n Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we conclude that the\\n\\nBLM, in issuing the Notices of Incidents of Noncompliance, lacked authority to\\n\\nrequire plaintiffs to provide BLM with a key to a lease site on privately-owned land\\n\\nor to allow the BLM to install its own locks on the gates to such lease site.\\n\\nConsequently, we reverse and remand to the district court with instructions to enter\\n\\njudgment in favor of plaintiffs on this “key or lock” issue.\\n\\n\\n\\n\\n 2\\n\\f I\\n\\n The Parcel and its component Tracts\\n\\n At issue in this case is a 320-acre parcel of land (the Parcel) that is located in\\n\\nthe S1/2 of Section 35, Township 34 South, Range 7 West in La Plata County in\\n\\nsouthwestern Colorado. The Parcel, which is comprised of 240 acres of private\\n\\nsurface/mineral estate and 80 acres of Indian surface/mineral estate, lies over the\\n\\nIgnacio Blanco gas field and the Fruitland coal formation.\\n\\n The O’Hares own the surface and mineral estate in a 120-acre tract of land in\\n\\nthe SW1/4SE1/4 and E1/2SW1/4 of the Parcel (the O’Hare Tract). The Southern Ute\\n\\nIndian Tribe (Tribe) holds the surface and mineral estate in the W1/2SW1/4 of the\\n\\nParcel (the Tribe Tract). The remainder of the Parcel (the Remainder Tract)—the\\n\\nN1/2SE1/4 and SE1/4SE1/4—is privately-owned by the O’Hare family, J. Elmer and\\n\\nWanda Lee Kenner, and Irma Rowse.\\n\\n The leases of the Tracts\\n\\n On June 6, 1974, the Tribe, acting pursuant to the Indian Mineral Leasing Act\\n\\nof 1938, 25 U.S.C. §§ 396a-396g (2012), issued to Sun Oil Company an Indian oil\\n\\nand gas lease, Mining Lease Contract No. MOO-C-1420-1531, for its mineral estate\\n\\nin the Tribe Tract. Amoco Production Company (Amoco) later took over as the\\n\\nlessee.\\n\\n\\n\\n\\n 3\\n\\f On April 28, 1995, the O’Hares issued to Maralex1 a private oil and gas lease\\n\\nfor the O’Hare Tract. SG Interests III, Ltd. (SG III) later joined Maralex as co-\\n\\nlessee.\\n\\n The O’Hares, Kenners, and Rowse issued three private oil and gas leases\\n\\ncovering the Remainder Tract. SG III and Maralex became the lessees of those\\n\\nleases.\\n\\n The Communitization Agreement\\n\\n In 1996, all of the parties (SG III, Maralex, the Tribe, the O’Hares, Kenners,\\n\\nand Rowe) “communitized” their coal and gas interests in the Parcel under the terms\\n\\nof a written agreement. More specifically, in a written Communitization Agreement\\n\\n(CA) dated May 1, 1996, the parties agreed to develop and operate the Parcel “as an\\n\\nentirety, with the understanding and agreement . . . that all Communitized Substances\\n\\nproduced therefrom [would] be allocated among the leaseholds comprising said area\\n\\nin the proportion that the acreage interest of each leasehold bears to the entire\\n\\nacreage interest committed to [the CA].” Aplt. App. at 3. The CA further stated, in\\n\\npertinent part, that “[t]he royalties payable on Communitized Substances allocated to\\n\\nthe individual leases comprising the [Tract] . . . shall be determined and paid on the\\n\\nbasis prescribed in each of the individual leases.” Id.\\n\\n Two other provisions of the CA are relevant to this case. First, the CA stated:\\n\\n“This agreement shall be subject to all applicable Federal and State laws or executive\\n\\n\\n 1\\n According to the record on appeal, Mary O’Hare is the president of Maralex.\\nAplt. App. at 8.\\n 4\\n\\forders, rules and regulations . . . .” Id. at 4. In addition, the CA stated: “It is agreed\\n\\nbetween the Parties Hereto that the Secretary of the Interior, or his duly Authorized\\n\\nOfficer, shall have the right of supervision over all operations within the\\n\\nCommunitized Area to the extent same includes the oil and gas lease(s) under which\\n\\nthe . . . Tribe is lessor and insofar as governed by applicable oil and gas regulations\\n\\nof the Department of Interior.” Id. at 5.\\n\\n The CA was approved by the Tribe and the Bureau of Indian Affairs (BIA)\\n\\neffective May 1, 1996.\\n\\n The wells operating under the CA\\n\\n There are four wells associated with the CA and arising from the underlying\\n\\nleases, all of which are operated by Maralex. The four wells are physically situated\\n\\nin two areas on the O’Hares’ private surface estate in the O’Hare Tract. Each such\\n\\narea is enclosed by a fence and a locked gate. All four of the wells are producing\\n\\n“both fee and Tribal minerals” from the Fruitland coal formation. Id. at 32.\\n\\nAlthough the oil and gas at issue is produced from private mineral interests and from\\n\\nwells situated on private surface estates, such production is, under the terms of the\\n\\nCA, allocated to all of the oil and gas interests, including that of the Tribe, as the\\n\\nowner of record title to the mineral estate in the Tribe’s Section of the Parcel.\\n\\n BLM’s attempt to inspect the wells\\n\\n On February 11, 2013, Gabriel Trujillo, a Petroleum Engineering Technician\\n\\nemployed by the BLM, sent an email to Maralex stating that he planned to inspect the\\n\\nfour wells. On February 12, 2013, Christi Reid, a Maralex employee, responded by\\n\\n 5\\n\\femail, noted that the wells were situated “on Mickey O’Hare’s property,” and stated\\n\\nthat she envisioned “problems with him granting access” to Trujillo. Id. at 18. One\\n\\nday later, on February 13, 2013, Reid emailed Trujillo again, stating: “I talked to\\n\\nMickey O’Hare and let him know that you want to inspect the . . . wells. He wants to\\n\\ntalk to you directly . . . .” Id.\\n\\n On February 22, 2013, Trujillo drove to the Parcel in an attempt to examine\\n\\nthe wells. Upon arrival, Trujillo found that there was a locked gate that prevented\\n\\nhim from examining the wells. That same day, Trujillo spoke by phone with Mickey\\n\\nO’Hare. O’Hare informed Trujillo that he had no right to inspect the wells because\\n\\nO’Hare owned both the surface and mineral rights.\\n\\n BLM’s issuance of INCs to Maralex\\n\\n On February 26, 2013, Trujillo completed four official BLM forms entitled\\n\\n“Notice of Incidents of Noncompliance” (INC). Id. at 23. The INCs noted that\\n\\nTrujillo had attempted unsuccessfully to access the wells on February 22, 2013. The\\n\\nINCs, which were sent to Maralex, alleged that Maralex was in violation of 43 C.F.R.\\n\\n§ 3162.1(b), and they gave Maralex until March 25, 2013, to provide Trujillo and the\\n\\nBLM with access to the wells. In the “Remarks” section of the INCs, Trujillo stated:\\n\\n“For corrective action, I will need a key to access the location or be able to put a\\n\\nBLM lock in with it.” Id. at 24.\\n\\n Maralex’s administrative appeal of the INCs\\n\\n On March 27, 2013, a law firm representing Maralex and the O’Hares sent a\\n\\nletter to BLM appealing the four INCs. The letter asserted that the BLM had\\n\\n 6\\n\\fmisinterpreted its authority to inspect oil and gas wells located on private land. More\\n\\nspecifically, the letter asserted that the BLM “ha[d] limited authority to inspect\\n\\nfacilities on Fee Tracts” and that the applicable regulations “only allow[ed] annual\\n\\ninspections” of such wells. Id. at 33. The letter also asserted that “there [wa]s no\\n\\nstatutory authority nor . . . any legitimate justification for giving the BLM unbridled\\n\\ndiscretion to search the facilities at issue in order to ensure that there [wa]s adequate\\n\\nsite security measurement and that Maralex [wa]s properly measuring the production\\n\\nand operation of the wells.” Id. “Thus,” the letter asserted, “BLM’s request for a\\n\\nkey to any gates to conduct inspections [wa]s violative of Maralex’s constitutionally\\n\\nguaranteed protection against unreasonable searches under the Fourth Amendment.”\\n\\nId. Lastly, the letter asserted that “there [wa]s no legal authority for the BLM’s\\n\\ndemand for unfettered access to the O’Hare’s surface.” Id. And the letter argued that\\n\\n“[i]f the BLM was entitled to unfettered right to access O’Hare’s property under\\n\\nSection 3162.1(b), it would constitute a regulatory taking of O’Hare’s property in\\n\\nviolation of O’Hare’s property rights as guarantee [sic] by the takings clause of the\\n\\nFifth Amendment.” Id. at 34.\\n\\n On April 10, 2013, the BLM notified Maralex’s counsel that it was treating the\\n\\nMarch 27, 2013 letter “as a request for State Director’s review (SDR) . . . under 43\\n\\nCFR 3165.3.” Id. at 88.\\n\\n On July 9, 2013, the BLM’s Deputy State Director, Energy, Lands, and\\n\\nMinerals, Colorado State Office, sent a letter to Maralex’s counsel responding to\\n\\neach point raised by Maralex’s counsel. The letter disagreed that the applicable\\n\\n 7\\n\\fregulations allowed only for “annual inspections for fee tracts in a CA.” Id. at 90.\\n\\nRather, the letter asserted, the “inspected annually” language in the regulation merely\\n\\nestablished a minimum standard as to what was to be accomplished. Id. As for its\\n\\nauthority to conduct inspections of the wells, the BLM noted that\\n\\n Section 101(b) of the Federal Oil and Gas Royalty Management Act of\\n 1982 (FOGRMA) provides that, “Authorized and properly identified\\n representatives of the Secretary may without advance notice, enter\\n upon, travel across and inspect lease sites on Federal or Indian lands\\n and may obtain from the operator immediate access to secured facilities\\n on such lease sites, for the purpose of making any inspection or\\n investigation for determining whether there is compliance with the\\n requirements of the minearal [sic] leasing laws and this Act.”\\n\\nId. at 90-91 (italics in original). The BLM in turn stated that “[s]ince the subject\\n\\nwells’ production is subject to a federal CA and the government receives a portion of\\n\\nthe production’s royalty, the BLM is responsible for assuring production\\n\\naccountability” and that “[t]his includes inspections for site security, proper handling,\\n\\nmeasurement and reporting of production and protection against product theft.” Id. at\\n\\n91. “Therefore,” the letter stated, “BLM must be allowed to perform the production\\n\\nrelated inspection which necessitates physical access to the subject wells and their\\n\\nassociated facilities without advance notice.” Id. In a section entitled “Decision,”\\n\\nthe letter stated:\\n\\n Upon review, the four INCs covering denied access to the subject\\n wells were properly issued and are upheld. The stay of enforcement\\n action granted in our April 10, 2013, letter to Maralex is hereby lifted.\\n\\n Maralex must provide the BLM Tres Rios Field Office access\\n without advance notice as required by the INCs and the regulations. If\\n Maralex chooses not to provide access as required, Maralex will be\\n subject to assessments pursuant to 43 CFR 3163.1. In addition further\\n\\n 8\\n\\f non-compliance shall result in proposed civil penalties pursuant to 43\\n CFR 3163.2(e)(1).\\n\\nId. at 93.\\n\\n On August 20, 2013, Maralex’s counsel sent the BLM a notice of appeal of the\\n\\nJuly 9, 2013 decision. Id. at 97. Maralex’s counsel followed that up by filing with\\n\\nthe IBLA a Statement of Reasons for Appeal. Id. at 98. The Statement of Reasons\\n\\nargued that the regulation relied on by the BLM, 43 C.F.R. § 3162.1(b), applies only\\n\\n“to Federal and Indian lease sites,” and that “there is no statutory authority to support\\n\\nthe BLM’s suggestion that it has the right to conduct warrantless searches of\\n\\nMaralex’s facilities.” Id. at 113. “Thus,” the Statement of Reasons asserted, “BLM’s\\n\\nrequest violates Maralex’s right not to be subject to unreasonable searches as\\n\\nguaranteed by the Fourth Amendment.” Id. Lastly, the Statement of Reasons\\n\\nasserted that “if the BLM does have the statutory and regulatory authority to access\\n\\nthe O’Hare’s Fee Tract at any time, such authority would constitute a regulatory\\n\\ntaking of the O’Hare’s property in violation of their due process rights under the\\n\\nFifth Amendment.” Id.\\n\\n On July 10, 2015, the IBLA issued a written decision affirming the BLM’s\\n\\nJuly 9, 2013 decision. In doing so, the IBLA did not address whether plaintiffs were\\n\\nrequired to provide the BLM with a key or allow the BLM to install its own locks on\\n\\nMaralex’s gates, nor did the IBLA address plaintiffs’ constitutional arguments.\\n\\n The district court proceedings\\n\\n\\n\\n\\n 9\\n\\f On September 1, 2015, Maralex and the O’Hares initiated these proceedings\\n\\nby filing a complaint in federal district court against the Secretary, the Department of\\n\\nthe Interior, and the United States. The complaint sought reversal of the IBLA’s\\n\\ndecision, as well as declaratory relief.\\n\\n On October 19, 2017, the district court issued an order affirming the IBLA’s\\n\\ndetermination. Plaintiffs now appeal.\\n\\n II\\n\\n Plaintiffs raise two issues on appeal: (1) whether they waived their argument\\n\\nthat the BLM lacked authority to require them to provide the BLM with keys to the\\n\\nlocked gates on the O’Hares’ private property or, alternatively, to allow the BLM to\\n\\nplace its own locks on those gates; and (2) whether the BLM has statutory or\\n\\nregulatory authority to require plaintiffs to provide the BLM with keys to locked\\n\\ngates on privately-owned lands or, alternatively, to allow the BLM to place its own\\n\\nlocks on such gates.2 As discussed in more detail below, whether plaintiffs waived\\n\\ntheir argument is a close question, but assuming they did, we nevertheless exercise\\n\\ndiscretion to address the underlying issue. We in turn conclude that BLM lacked\\n\\nauthority to impose the “key or lock” requirement.\\n\\n Did plaintiffs waive their argument that the BLM lacked authority\\n to require them to provide keys to their locked gates or to allow the\\n BLM to place its own locks on those gates?\\n\\n\\n 2\\n Until recently, plaintiffs asserted three additional issues on appeal, including\\nFourth and Fifth Amendment challenges to the inspection protocol advocated by the\\nBLM. At oral argument, however, plaintiffs abandoned those issues. Consequently,\\nwe do not address them.\\n 10\\n\\f As noted, plaintiffs first argue that the district court erred in concluding that\\n\\nthey waived their argument that the BLM lacked authority to require them to provide\\n\\nthe BLM with keys to locked gates or to allow the BLM to place its own locks on\\n\\nthose gates. The district court concluded that plaintiffs “did not present to the IBLA\\n\\nthis particular argument that the BLM’s corrective action exceeded its authority.”\\n\\nAplt. App. at 207-08. The district court in turn concluded “that Plaintiffs waived this\\n\\nargument for purposes of this appeal and [it] decline[d] to consider it.” Id. at 208.\\n\\n To resolve this issue, we begin by turning to the record. Plaintiffs, in their\\n\\ninitial appeal of the INCs, “claim[ed] that BLM ha[d] no statutory authority or\\n\\nlegitimate justification giving the BLM unbridled discretion to search the subject\\n\\nwell facilities in order to ensure site security and proper measurement” and that,\\n\\nconsequently, “the BLM’s request for a key to any gates to conduct inspections [wa]s\\n\\nin violation of Maralex’s constitutionally guaranteed protection against unreasonable\\n\\nsearches under the Fourth Amendment.” Aplt. App. at 90.\\n\\n In their appeal to the IBLA from the State Director’s decision denying their\\n\\ninitial appeal, plaintiffs argued, in pertinent part, that “there [wa]s no statutory\\n\\nauthority nor . . . any legitimate justification for giving the BLM unbridled discretion\\n\\nto search the facilities at issue at any time and without notice,” and that,\\n\\nconsequently, “BLM’s request for a key to any gates to conduct unannounced\\n\\ninspections [wa]s violative of Maralex’s constitutionally guaranteed protection\\n\\nagainst unreasonable searches under the Fourth Amendment.” Id. at 102. Plaintiffs\\n\\nfurther argued that “there [wa]s no statutory support for warrantless, unannounced\\n\\n 11\\n\\finspections of [the] Fee Tracts,” and thus the BLM could not “rely on” its own\\n\\nregulations “for conducting unannounced, warrantless searches of the sites at issue.”\\n\\nId. at 107–08. Plaintiffs also argued that “Paragraph 13” of the CA “does not provide\\n\\nthe BLM with the unlimited right to conduct inspections without advance notice nor\\n\\ndoes it form the basis for giving the BLM a key to have unlimited physical access to\\n\\nthe wells and related facilities on Fee Tracts, which is applicable only to Federal and\\n\\nIndian lease sites.” Id. at 112. Lastly, the plaintiffs challenged the State Director’s\\n\\nrejection of “the O’Hare’s [sic] assertion that forcing them to supply the BLM with a\\n\\nkey to a lock to allow the BLM to have physical access to their surface property for\\n\\nunannounced inspections of Maralex’s wells and related facilities located on the\\n\\nO’Hare’s [sic] surface constitute[d] an unauthorized takings under the Fifth\\n\\nAmendment.” Id. at 112-13.\\n\\n In our view, it is a close question whether plaintiffs presented their argument\\n\\nto the IBLA that BLM exceeded its statutory and regulatory authority by requiring a\\n\\nkey or lock in the INCs. On the one hand, plaintiffs clearly argued, as part of their\\n\\nFourth Amendment challenge, that the BLM lacked both statutory and regulatory\\n\\nauthority to impose the key/lock requirement. On the other hand, plaintiffs expressly\\n\\nasserted before the IBLA that it lacked authority to address their Fourth Amendment\\n\\nchallenge and they asked the IBLA not to consider it.\\n\\n Even assuming, however, that plaintiffs failed to properly present to the IBLA\\n\\ntheir argument that the key/lock requirement exceeded the BLM’s statutory and\\n\\nregulatory authority, we nevertheless choose to exercise our discretion to address that\\n\\n 12\\n\\fissue.3 See U.S. Nat’l Bank of Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S.\\n\\n439, 447–48 (1993) (discussing authority of appellate court to address potentially\\n\\nwaived issue). We have held, albeit in a slightly different context, that we may\\n\\ndepart from general waiver principles “particularly when we are presented with a\\n\\nstrictly legal question, the proper resolution of which is beyond doubt or when\\n\\nmanifest injustice would otherwise result.” Daigle v. Shell Oil Co., 972 F.2d 1527,\\n\\n1539 (10th Cir. 1992). Further, in considering whether to address an alternative\\n\\ntheory, we take into account (1) “whether the ground was fully briefed and argued\\n\\nhere and below,” (2) “whether the parties have had a fair opportunity to develop the\\n\\nfactual record,” and (3) “whether, in light of factual findings to which we defer or\\n\\nuncontested facts, our decision would involve only questions of law.” Elkins v.\\n\\nComfort, 392 F.3d 1159, 1162 (10th Cir. 2004) (citations omitted).\\n\\n In this case, the issue of the BLM’s statutory and regulatory authority has been\\n\\nfully briefed and argued in this court by both sides. Further, the factual record is\\n\\nessentially undisputed and, thus, we are presented with only a question of law.\\n\\nLastly, and perhaps most importantly, the BLM has indicated its intention to enforce\\n\\nthe key/lock requirement at the conclusion of this litigation. On October 22, 2018,\\n\\n\\n 3\\n We are not aware of, nor has the BLM cited to, any authority holding that\\npreservation of the issue before the IBLA is a jurisdictional prerequisite. See Air\\nCourier Conference of Am. v. Am. Postal Workers Union AFL-CIO, 498 U.S. 517,\\n523 n.3 (1991) (“The judicial review provisions of the APA are not jurisdictional . . .\\n.”); Chissoe v. Zinke, 725 F. App’x 614, 621 (10th Cir. 2018) (stating that “judicial\\nexhaustion requirements under the APA are prudential only.”); Vietnam Veterans of\\nAm. v. Shinseki, 599 F.3d 654, 661 (D.C. Cir. 2010) (“We think the proposition that\\nthe review provisions of the APA are not jurisdictional is now firmly established.”).\\n 13\\n\\fwe issued an order to show cause directing the parties to address, in pertinent part,\\n\\nthe question of whether the BLM was continuing to require Maralex to provide the\\n\\nBLM with a key to the lock on the O’Hares’ gate or to allow the BLM to place its\\n\\nown lock on the gate. On December 18, 2018, defendants responded that, indeed,\\n\\n“BLM continues to require Maralex to either provide the agency with a key to the\\n\\nlock on the O’Hares’ gate or allow BLM to place its own lock on the gate.” Aple.\\n\\nResp. to Order to Show Cause at 2. Defendants asserted that, “[i]n the absence of\\n\\ncompliance with the [key/lock requirement] in the INCs, Mr. O’Hare may refuse\\n\\nBLM access to the wells at any time, as he did in February 2013 (which led to BLM’s\\n\\nissuance of the INCs).” Id. at 3. Thus, despite the fact that the INCs were issued\\n\\nnearly six years ago, it is clear that the BLM intends to enforce the key/lock\\n\\nrequirement once this litigation ends. For this reason, we conclude that the interests\\n\\nof justice are best served if we address the merits of plaintiffs’ argument that BLM\\n\\nlacks statutory and regulatory authority to impose the key/lock requirement.\\n\\n Does the BLM have authority to require a landowner or operator\\n to provide the BLM with keys to the landowner’s locked gates or allow\\n the BLM to place its own locks on the landowner’s gates?\\n\\n We now turn to the merits of plaintiffs’ argument. Plaintiffs assert that, even\\n\\nassuming some statutory or regulatory authority exists for the BLM to conduct\\n\\ninspections on fee lands without advanced notice, “there are limits to such\\n\\ninspections.” Aplt. Br. at 40. Plaintiffs point to the language of 30 U.S.C. § 1718 to\\n\\nsupport their position. Section 1718, plaintiffs note, “limits the right to enter upon,\\n\\ntravel across and inspect lease sites to not only ‘authorized’ representatives of the\\n\\n 14\\n\\fSecretary, but to representatives that are ‘properly identified.’” Id. And, plaintiffs\\n\\nargue, “[b]ecause the landowner and the operator have the right to ensure that the\\n\\nrepresentative is properly identified, the BLM cannot force either the landowner or\\n\\nthe operator to provide a key to the landowner’s locked gates or be forced to allow\\n\\nthe BLM to place a lock on the landowner’s locked gates since by doing so neither\\n\\nthe landowner nor operator will be able to check the identification of the person(s)\\n\\nentering upon, travelling across, and/or inspecting the facilities.” Id. at 40-41.\\n\\nLastly, plaintiffs argue that “[a]ll that is required of the operator under Section\\n\\n1718(b) is to provide ‘immediate access to secured facilities’ to a properly identified\\n\\nrepresentative of the Secretary.” Id. at 41. This means, plaintiffs argue, that “if the\\n\\noperator is on site at the time of the inspection, it is required to open any gates or\\n\\notherwise secured facilities” and “[i]f the operator is not on the lease site when the\\n\\nauthorized, properly identified representative arrives at the lease site, then the\\n\\noperator is required to go to the lease site and provide immediate access.” Id.\\n\\n Defendants argue, in response, that “the INCs’ corrective action requiring\\n\\nPlaintiffs to provide BLM with key or lock access is permissible under the statute and\\n\\nthe regulations.” Aple. Br. at 39. In particular, defendants assert that “FOGRMA\\n\\nand its implementing regulations provide that any person who fails to allow\\n\\nauthorized inspections is liable for penalties, which may not be applied if the liable\\n\\nperson takes the prescribed corrective action within the required timeframe.” Id.\\n\\n a) Standard of review\\n\\n\\n\\n 15\\n\\f Although this is an appeal from the district court’s decision, we accord no\\n\\nparticular deference to that decision. Instead, we conduct our own independent\\n\\nreview of the agency’s decision. Exxon Mobil Oil Corp. v. Norton, 346 F.3d 1244,\\n\\n1248 (10th Cir. 2003). Under the Administrative Procedures Act, we will “set aside\\n\\nagency’s action if it is arbitrary, capricious, an abuse of discretion, or otherwise not\\n\\nin accordance with law.” Utah Envtl. Cong. v. Bosworth, 439 F.3d 1184, 1188 (10th\\n\\nCir. 2006) (internal quotations omitted); see 5 U.S.C. § 706(2)(A).\\n\\n When reviewing an agency’s interpretation of a statute it administers, we first\\n\\ndetermine whether Congress has directly spoken to the precise issue. See Chevron,\\n\\nU.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984); Cliffs Synfuel\\n\\nCorp. v. Norton, 291 F.3d 1250, 1257 (10th Cir. 2002). “If the intent of Congress is\\n\\nclear, that is the end of the matter; for the court . . . must give effect to the\\n\\nunambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842–43. If,\\n\\nhowever, the statute is silent or ambiguous on the issue in question, we do not impose\\n\\nour own construction on the statute, but rather ascertain whether the agency’s\\n\\ninterpretation is a permissible construction of the statute. Id. at 843. If it is, we defer\\n\\nto that interpretation. Id. at 844. Our review of federal regulations is similar. “In the\\n\\nusual course, when an agency is authorized by Congress to issue regulations and\\n\\npromulgates a regulation interpreting a statute it enforces, the interpretation receives\\n\\ndeference if the statute is ambiguous and if the agency’s interpretation is reasonable.”\\n\\nEncino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2124 (2016). “This principle is\\n\\nimplemented by the two-step analysis set forth in Chevron.” Id. “At the first step, a\\n\\n 16\\n\\fcourt must determine whether Congress has ‘directly spoken to the precise question\\n\\nat issue.” Encino, 136 S. Ct. at 2124 (quoting Chevron, 467 U.S. at 842). “If the\\n\\nintent of Congress is clear, that is the end of the matter; for the court, as well as the\\n\\nagency, must give effect to the unambiguously expressed intent of Congress.”4\\n\\nChevron, 467 U.S. at 842-43. “If not, then at the second step the court must defer to\\n\\nthe agency’s interpretation if it is ‘reasonable.’” Encino, 136 S. Ct. at 2125 (quoting\\n\\nChevron, 467 U.S. at 844). “It is well established that an agency’s interpretation\\n\\nneed not be the only possible reading of a regulation—or even the best one—to\\n\\nprevail.” Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 613 (2013). “When an\\n\\nagency interprets its own regulation, the Court, as a general rule, defers to it unless\\n\\nthat interpretation is plainly erroneous or inconsistent with the regulation.” Id.\\n\\n(quotation marks omitted).\\n\\n b) Analysis\\n\\n We begin our analysis by briefly examining the overall statutory and\\n\\nregulatory scheme for inspections of oil and gas lease sites that implicate Indian\\n\\n\\n\\n\\n 4\\n At the first step of the Chevron analysis, “we must giv[e] all undefined terms\\ntheir ordinary meaning.’” Nat’l Credit Union Admin. Bd. v. Nomura Home Equity\\nLoan, Inc., 764 F.3d 1199, 1227 (10th Cir. 2014) (quoting Fed. Hous. Fin. Agency v.\\nUBS Americas Inc., 712 F.3d 136, 141 (2d Cir. 2013)). “We may consult a\\ndictionary to determine the plain meaning of a term” and may “also take into account\\nthe broader context of the statute as a whole when ascertaining the meaning of a\\nparticular provision.” Conrad v. Phone Directories Co., 585 F.3d 1376, 1381 (10th\\nCir. 2009) (quotation marks and citation omitted).\\n 17\\n\\fmineral interests. In § 1702 of FOGRMA, Congress set forth the following\\n\\ndefinitions that are relevant to understanding the substantive provisions of the Act:\\n\\n (1) “Federal land” means all land and interests in land owned by the\\n United States which are subject to the mineral leasing laws, including\\n mineral resources or mineral estates reserved to the United States in the\\n conveyance of a surface or nonmineral estate;\\n ···\\n (3) “Indian lands” means any lands or interest in lands of an Indian tribe\\n or an Indian allottee held in trust by the United States or which is\\n subject to Federal restriction against alienation or which is administered\\n by the United States pursuant to section 14(g) of Public Law 92-203 [43\\n USC § 1613(g)], as amended, including mineral resources and mineral\\n estates reserved to an Indian tribe or an Indian allottee in the\\n conveyance of a surface or nonmineral estate, except that such term\\n does not include any lands subject to the provisions of section 3 of the\\n Act of June 28, 1906 (34 Stat. 539) [unclassified];\\n ···\\n (5) “lease” means any contract, profit-share arrangement, joint venture,\\n or other agreement issued or approved by the United States under a\\n mineral leasing law that authorizes exploration for, extraction of, or\\n removal of oil or gas;\\n (6) “lease site” means any lands or submerged lands, including the\\n surface of a severed mineral estate, on which exploration for, or\\n extraction or removal of, oil or gas is authorized pursuant to a lease;\\n ···\\n\\n30 U.S.C. § 1702(1), (3), (5), (6).\\n\\n In our view, the plain language of the statutory definition of “lease” includes\\n\\ncommunitization agreements approved by the United States, such as the one at issue\\n\\nin this case. More specifically, a communitization agreement is a “contract” or\\n\\n“other agreement” that, depending upon the circumstances, has been “approved by\\n\\nthe United States under a mineral leasing law,” i.e., federal law governing mineral\\n\\nrights on Indian and trust land, “that authorizes exploration for, extraction of, or\\n\\n\\n\\n 18\\n\\fremoval of oil or gas.”5 Thus, the statutory definition of “lease site” necessarily\\n\\nincludes any lands, including privately-owned lands, on which exploration for and\\n\\nextraction of oil and gas is occurring pursuant to a communitization agreement.\\n\\n Section 1718 of FOGRMA, entitled “Inspection,” provides in pertinent part as\\n\\nfollows:\\n\\n (b) Inspection of lease sites for compliance with mineral leasing laws\\n and 30 USCS §§ 1701 et seq. Authorized and properly identified\\n representatives of the Secretary may without advance notice, enter upon,\\n travel across and inspect lease sites on Federal or Indian lands and may\\n obtain from the operator immediate access to secured facilities on such\\n lease sites, for the purpose of making any inspection or investigation for\\n determining whether there is compliance with the requirements of the\\n mineral leasing laws and this Act. The Secretary shall develop\\n guidelines setting forth the coverage and the frequency of such\\n inspections.\\n\\n30 U.S.C. §1718(b). Although § 1718(b) incorporates the statutory phrase “lease\\n\\nsites,” it proceeds to limit the scope of that phrase by authorizing BLM\\n\\nrepresentatives to, “without advance notice, enter upon, travel across and inspect”\\n\\nlease sites that exist “on Federal or Indian lands,” i.e., non-fee lands owned by the\\n\\nUnited States or held in trust by the United States for a tribe, and that arise out of\\n\\n\\n 5\\n Neither the IBLA nor the BLM have expressly adopted this broad definition\\nof “lease.” Instead, the IBLA interpreted the identically-worded regulatory definition\\nof the term “lease site” to include more than “Federal or Indian lease sites,” and also\\nconcluded that the identically-worded regulatory definition of the term “lease” was\\nnot incorporated into the regulatory phrase “lease site.” Aplt. App. at 170, 174. We\\nreject this latter conclusion as inconsistent with the statutory language and normal\\nrules of statutory construction. In particular, “it is a normal rule of statutory\\nconstruction that identical words used in different parts of the same act are intended\\nto have the same meaning,” and we see no evidence that Congress intended for the\\nterm “lease,” as used in the term “lease site,” to carry a different meaning. Pereira v.\\nSessions, 138 S. Ct. 2105, 2115 (2018).\\n 19\\n\\fcontracts or agreements issued or approved by the United States. Further, the statute\\n\\nis silent with respect to how, if at all, BLM representatives may access lease sites on\\n\\nprivately-owned lands.\\n\\n Defendants concede that “Congress did not expressly address the application\\n\\nof Section 1718(b) inspection authority to fee lands committed to communitization\\n\\nagreements.” Aple. Br. at 15. But, defendants argue, “[g]iven that ambiguity, BLM\\n\\nreasonably exercised its delegated rulemaking authority to include the inspection of\\n\\nfee lands that, like the O’Hares’, are subject to a communitization agreement that was\\n\\napproved by the Department and involves Indian lands where the affected tribe shares\\n\\nin the production and royalties of the oil and gas operation.” Id.\\n\\n Defendants’ arguments hinge on the threshold question of whether § 1718(b) is\\n\\nambiguous or not. A statute is “ambiguous if it is reasonably susceptible to more\\n\\nthan one interpretation or capable of being understood in two or more possible senses\\n\\nor ways.” Nat’l Credit Union Admin. Bd. v. Nomura Home Equity Loan, Inc., 764\\n\\nF.3d 1199, 1226 (10th Cir. 2014) (quotations and citations omitted); see Chickasaw\\n\\nNation v. United States, 534 U.S. 84, 90 (2001). Although it may be reasonable from\\n\\na policy standpoint for the BLM to have authority to inspect fee lands that are subject\\n\\nto a communitization agreement approved by the United States, § 1718(b) simply is\\n\\nnot ambiguous and thus does not provide the BLM with any authority to exercise its\\n\\ndelegated rulemaking authority on that issue. As noted, § 1718(b) quite clearly limits\\n\\nthe BLM’s inspection authority to lease sites on federal and Indian lands.\\n\\n\\n\\n 20\\n\\f To be sure, § 1718(b) is silent with respect to inspections of lease sites on fee\\n\\nlands, but that silence does not render the statute ambiguous. See Spring Creek Expl.\\n\\n& Prod. Co. v. Hess Bakken Inv., II, LLC, 887 F.3d 1003, 1018 (10th Cir. 2018)\\n\\n(“silence is not ambiguity”). When the Supreme Court has discussed the exercise of\\n\\nagency discretion “‘in the interstices created by statutory silence,’” it has done so\\n\\nonly when “considering undefined terms in a statute or statutory directive to perform\\n\\na specific task without giving detailed instructions.” Marlow v. New Food Guy, Inc.,\\n\\n861 F.3d 1157, 1162 (10th Cir. 2017) (quoting Util. Air Regulatory Grp. v. EPA, 134\\n\\nS. Ct. 2427, 2445 (2014) (internal quotation marks omitted)). And that is simply not\\n\\nthe case with § 1718(b). As noted, § 1718(b) plainly focuses on lease sites “on\\n\\nFederal or Indian lands” and does not otherwise leave any terms or statutory\\n\\ndirectives undefined.\\n\\n For these reasons then, we conclude that § 1718(b) does not afford the BLM\\n\\nwith authority to inspect lease sites on privately-owned lands. Thus, we must look\\n\\nelsewhere to determine whether any authority exists for the BLM’s proposed\\n\\ninspections of the wells in this case.\\n\\n The Secretary has issued regulations implementing the various statutory\\n\\ndirectives outlined by Congress in FOGRMA. To begin with, 43 C.F.R. § 3161.1(b)\\n\\nstates:\\n\\n The regulations in this part and 43 CFR part 3170, including subparts\\n 3173, 3174, and 3175, relating to site security, measurement of oil and\\n gas, reporting of production and operations, and assessments or\\n penalties for non-compliance with such requirements, are applicable to\\n all wells and facilities on State or privately owned lands committed to a\\n\\n 21\\n\\f unit or communitization agreement, which include Federal or Indian\\n lease interests, notwithstanding any provision of a unit or\\n communitization agreement to the contrary.\\n\\n43 C.F.R. § 3161.1(b) (emphasis added).\\n\\n In turn, 43 C.F.R. § 3161.3, entitled “Inspections,” states:\\n\\n (a) The authorized officer shall establish procedures to ensure that each\\n Federal and Indian lease site which is producing or is expected to\\n produce significant quantities of oil or gas in any year or which has a\\n history of noncompliance with applicable provisions of law or\\n regulations, lease terms, orders or directives shall be inspected at least\\n once annually. Similarly, each lease site on non-Federal or non-Indian\\n lands subject to a formal agreement such as a unit or communitization\\n agreement which has been approved by the Department of the Interior\\n and in which the United States or the Indian lessors share in production\\n shall be inspected annually whenever any of the foregoing criteria are\\n applicable.\\n (b) In accomplishing the inspections, the authorized officer may utilize\\n Bureau personnel, may enter into cooperative agreements with States or\\n Indian Tribes, may delegate the inspection authority to any State, or\\n may contract with any non-Federal Government entities. Any\\n cooperative agreement, delegation or contractual arrangement shall not\\n be effective without concurrence of the Secretary and shall include\\n applicable provisions of the Federal Oil and Gas Royalty Management\\n Act.\\n\\n43 C.F.R. § 3163.3(a) and (b).6\\n\\n Lastly, 43 C.F.R. § 3162.1, which discusses “General requirements” for\\n\\noperating rights owners and operators, states:\\n\\n (a) The operating rights owner or operator, as appropriate, shall comply\\n with applicable laws and regulations; with the lease terms, Onshore Oil\\n\\n 6\\n The Secretary’s authority to enact the portion of this regulation concerning\\ninspections on privately-owned lands arises both from the general purposes\\nprovisions of FOGRMA, § 1701(b)(3)-(5), as well as § 1711(a) and (b). Section\\n1711(a) directs the Secretary, in part, to “establish a comprehensive inspection . . .\\nsystem,” and §1711(b) directs the Secretary to conduct annual inspections of certain\\nlease sites, without limitation to sites contained on Federal or Indian lands.\\n 22\\n\\f and Gas Orders, NTL’s; and with other orders and instructions of the\\n authorized officer. These include, but are not limited to, conducting all\\n operations in a manner which ensures the proper handling,\\n measurement, disposition, and site security of leasehold production;\\n which protects other natural resources and environmental quality; which\\n protects life and property; and which results in maximum ultimate\\n economic recovery of oil and gas with minimum waste and with\\n minimum adverse effect on ultimate recovery of other mineral\\n resources.\\n\\n (b) The operator shall permit properly identified authorized\\n representatives to enter upon, travel across and inspect lease sites and\\n records normally kept on the lease pertinent thereto without advance\\n notice. Inspections normally will be conducted during those hours when\\n responsible persons are expected to be present at the operation being\\n inspected. Such permission shall include access to secured facilities on\\n such lease sites for the purpose of making any inspection or\\n investigation for determining whether there is compliance with the\\n mineral leasing laws, the regulations in this part, and any applicable\\n orders, notices or directives.\\n\\n (c) For the purpose of making any inspection or investigation, the\\n Secretary or his authorized representative shall have the same right to\\n enter upon or travel across any lease site as the operator has acquired\\n by purchase, condemnation or otherwise.\\n\\n43 C.F.R. § 3162.1 (emphasis added).7\\n\\n The regulatory provisions thus provide for an inspection framework that\\n\\napplies to federal, Indian, and certain privately-owned lands, but that, not\\n\\nsurprisingly, provides the BLM with greater inspection authority over federal and\\n\\nIndian lands than privately-owned lands. With respect to lease sites on federal and\\n\\nIndian land that are “producing or . . . expected to produce significant quantities of\\n\\noil or gas in a year or which ha[ve] a history of noncompliance with applicable\\n\\n\\n 7\\n It was this regulation that Maralex was cited for violating in the four INCs.\\nAplt. App. at 168.\\n 23\\n\\fprovisions of law or regulations,” BLM representatives must inspect such lease sites\\n\\n“at least once annually.” 43 C.F.R. § 3161.3(a). As for lease sites on privately-\\n\\nowned lands that are committed to a unit or communitization agreement that has been\\n\\napproved by the Department of the Interior, they are required to “be inspected\\n\\nannually whenever” they are “producing or . . . expected to produce significant\\n\\nquantities of oil or gas in any year or” if they “ha[ve] a history of noncompliance\\n\\nwith applicable provisions of law or regulations.”8 43 C.F.R. § 3161.3(a). They can\\n\\nalso be inspected by the BLM for purposes of assessing “site security, measurement,\\n\\nreporting of production and operations, and assessments or penalties for\\n\\nnoncompliance with such requirements.” 43 C.F.R. § 3161.2. Further, the operating\\n\\nrights owner or operator of any such lease site on privately-owned land is required to\\n\\n“permit properly identified authorized representatives” of the BLM “to enter upon,\\n\\ntravel across and inspect lease sites and records normally kept on the lease pertinent\\n\\nthereto without advance notice.” 43 C.F.R. § 3162.1(b). Any such inspections,\\n\\nhowever, must normally “be conducted during those hours when responsible persons\\n\\nare expected to be present at the operation being inspected.” Id. In addition, “[s]uch\\n\\npermission” by the operating rights owner or operator “shall include access to\\n\\nsecured facilities on such lease sites for the purpose of making any inspection or\\n\\ninvestigation for determining whether there is compliance with the mineral leasing\\n\\n\\n\\n 8\\n In this case, the IBLA expressly found that the wells at issue “are producing\\nor expected to produce significant quantities of oil and gas,” thus rendering the wells\\nsubject to annual inspection under § 3163.3(a). Aplt. App. at 172.\\n 24\\n\\flaws, the regulations . . . , and any applicable orders, notices or directives.” Id.\\n\\nLastly, BLM representatives are, “for the purpose of making any inspection or\\n\\ninvestigation,” afforded the same right of entry to and travel access across the lease\\n\\nsite “as the operator has acquired by purchase, condemnation or otherwise.” Id. §\\n\\n3162.1(c).\\n\\n Thus, at least for purposes of this case, the key difference between lease sites\\n\\non federal/Indian lands and lease sites on privately-owned land subject to a\\n\\ncommunitization agreement is how BLM representatives may access them. For lease\\n\\nsites on federal/Indian lands, BLM representatives have the right to enter those sites\\n\\nby themselves without first seeking permission from the operating rights owner or\\n\\noperator. In contrast, for lease sites on privately-owned lands, BLM representatives\\n\\nmay not independently enter the sites, but instead must seek entry (but do not have to\\n\\ngive advance notice) from the operating rights owner or operator and the operating\\n\\nrights owner or operator, as noted, is obligated to allow such entry.\\n\\n As for how often BLM representatives may inspect the wells, the regulations\\n\\ncontain no limitation. Indeed, the only reference to frequency of inspections is\\n\\ncontained in § 3161.3(a), which, as noted, requires lease sites meeting certain\\n\\nrequirements to be inspected at least once annually. Section 3161.3(a) does not,\\n\\nhowever, impose any upper limit on the number of inspections. In other words, as\\n\\nboth the State Director and the IBLA concluded in their respective decisions, “[t]he\\n\\n[regulatory] wording ‘inspected annually’ is a minimum standard not a maximum\\n\\nlimitation.” Aplt. App. at 90; see id. at 176 n.10 (IBLA decision).\\n\\n 25\\n\\f In sum, the BLM had authority to inspect the wells at issue. The question\\n\\nremains, however, whether BLM had authority to require Maralex to provide BLM\\n\\nwith “a key to access the location or” allow BLM to install its own locks. Aplt. App.\\n\\nat 24).\\n\\n We agree with plaintiffs that the BLM lacks authority to require an operator or\\n\\nlandowner to provide the BLM with a key to the landowner’s locked gates or to allow\\n\\nthe BLM to place its own locks on the landowner’s locked gates. But we arrive at\\n\\nthis conclusion in a different manner than suggested by plaintiffs. Although\\n\\nplaintiffs base many of their arguments on the language of § 1718(b), that statutory\\n\\nsubsection, as discussed above, does not apply at all to lease sites on privately-owned\\n\\nlands. Instead, the parameters of inspections of lease sites on privately-owned lands\\n\\nare outlined in two regulations: 30 C.F.R. §§ 3162.1 and 3163.3. Neither of those\\n\\nregulations provide any authority for the BLM to require an operating rights owner or\\n\\noperator (or, for that matter, a private landowner) to (a) provide BLM with a key to a\\n\\nlease site on privately-owned land, or (b) to install a BLM-lock on the gates to such\\n\\nlease site. Rather, as discussed above, the BLM has the right to conduct\\n\\nunannounced inspections of such sites, but must rely on the operating rights owner or\\n\\noperator to afford them entry to the lease site.\\n\\n Defendants, for their part, cite in their appellate brief to the statutory and\\n\\nregulatory provisions authorizing the BLM to take “corrective action.” Aple. Br. at\\n\\n39 (citing 30 U.S.C. §§ 1719(a)(2)(A), (a)(2)(B) and 43 C.F.R. § 3163.1(a)(4)).\\n\\nThose statutory provisions, however, speak only in terms of monetary “civil\\n\\n 26\\n\\fpenalties” (the amount of which depends upon how long the violation has gone on).\\n\\n30 U.S.C. §§ 1719(a)(2), (b). The regulatory provisions also mention the possibility\\n\\nof lease cancellations and criminal penalties. 43 C.F.R. §§ 3163.1(a)(5), 3163.3.\\n\\nNotably, nothing in the statutory and regulatory provisions mentions the remedy\\n\\nimposed on the plaintiffs in this case, i.e., requiring them to provide BLM with a key\\n\\nor to allow BLM to install its own locks. Although defendants concede this point,\\n\\nthey nevertheless argue that “it is reasonable to conclude that when a landowner\\n\\ndenies BLM entry, the very least that the agency can permissibly do under the statute\\n\\nis order any reasonable remedy that will yield the access required to carry out\\n\\nCongress’s charge.” Id. at 39-40. We reject that argument. Requiring the provision\\n\\nof a key or lock access is, without question, a drastic measure that would, at a\\n\\nminimum, require express congressional approval. Because no such approval\\n\\nappears in the relevant statutes or regulations, defendants’ arguments must be\\n\\nrejected.\\n\\n III\\n\\n We REVERSE and REMAND to the district court with directions to enter\\n\\njudgment in favor of plaintiffs on their claim that the BLM lacks authority to require\\n\\nplaintiffs to provide the BLM with a key to access the wells at issue or to allow BLM\\n\\nto install its own locks.\\n\\n\\n\\n\\n 27\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4360231/\", \"author_raw\": \"BRISCOE, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"BRISCOE"},"judge2":{"kind":"string","value":"LUCERO"},"judge3":{"kind":"string","value":"MATHESON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4582978/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: MARALEX RESOURCES, INC., a Colorado Corporation; Alexis M. O'Hare; Mary C. O'Hare, Plaintiffs - Appellants, v. David BARNHARDT, in His Official Capacity as Acting Secretary of the United States Department of the Interior; The United States Department of Interior; The United States of America, Defendants - Appellees.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-18\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 18, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n MARALEX RESOURCES, INC., a\n Colorado corporation; ALEXIS M.\n O'HARE; MARY C. O'HARE,\n\n Plaintiffs - Appellants,\n\n v. No. 17-1421\n\n DAVID BARNHARDT, in his official\n capacity as Acting Secretary of the United\n States Department of the Interior; THE\n UNITED STATES DEPARTMENT OF\n INTERIOR; THE UNITED STATES OF\n AMERICA,\n\n Defendants - Appellees.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Colorado\n (D.C. No. 1:15-CV-01893-CMA)\n _________________________________\n\nWilliam E. Zimsky, Abadie & Schill, PC, Durango, Colorado, appearing for the\nAppellants.\n\nTamara N. Rountree, Attorney, Environmental and Natural Resources Division, United\nStates Department of Justice, Washington, DC (Jeffrey H. Wood, Acting Assistant\nAttorney General, and Eric Grant, Deputy Assistant Attorney General, United States\nDepartment of Justice, Washington, DC; William Lazarus and John L. Smeltzer,\nAttorneys, Environmental and Natural Resources Division, United States Department of\nJustice, Washington, DC; and Philip C. Lowe, Rocky Mountain Regional Solicitor’s\n\n \n In accordance with Fed. R. App. P. 43(c)(2), David Barnhardt is substituted\nfor Ryan Zinke, as the respondent in this action.\n\fOffice, Department of the Interior, Lakewood, Colorado, with her on the brief), appearing\nfor the Appellee.\n _________________________________\n\nBefore BRISCOE, LUCERO, and MATHESON, Circuit Judges.\n _________________________________\n\nBRISCOE, Circuit Judge.\n _________________________________\n\n Plaintiffs Maralex Resources, Inc. (Maralex), Alexis O’Hare and Mary C.\n\nO’Hare (the O’Hares) filed this action against the Secretary of the Department of the\n\nInterior (Secretary), the Department of the Interior, and the United States seeking\n\nreview of a decision of the Interior Board of Land Appeals (IBLA) upholding four\n\nNotices of Incidents of Noncompliance that were issued by the Bureau of Land\n\nManagement’s (BLM’s) Tres Rios Field Office to Maralex for failing to allow a\n\nBLM representative to access certain oil and gas lease sites operated by Maralex on\n\nland owned by the O’Hares. The district court affirmed the IBLA’s decision.\n\nPlaintiffs now appeal.\n\n Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we conclude that the\n\nBLM, in issuing the Notices of Incidents of Noncompliance, lacked authority to\n\nrequire plaintiffs to provide BLM with a key to a lease site on privately-owned land\n\nor to allow the BLM to install its own locks on the gates to such lease site.\n\nConsequently, we reverse and remand to the district court with instructions to enter\n\njudgment in favor of plaintiffs on this “key or lock” issue.\n\n\n\n\n 2\n\f I\n\n The Parcel and its component Tracts\n\n At issue in this case is a 320-acre parcel of land (the Parcel) that is located in\n\nthe S1/2 of Section 35, Township 34 South, Range 7 West in La Plata County in\n\nsouthwestern Colorado. The Parcel, which is comprised of 240 acres of private\n\nsurface/mineral estate and 80 acres of Indian surface/mineral estate, lies over the\n\nIgnacio Blanco gas field and the Fruitland coal formation.\n\n The O’Hares own the surface and mineral estate in a 120-acre tract of land in\n\nthe SW1/4SE1/4 and E1/2SW1/4 of the Parcel (the O’Hare Tract). The Southern Ute\n\nIndian Tribe (Tribe) holds the surface and mineral estate in the W1/2SW1/4 of the\n\nParcel (the Tribe Tract). The remainder of the Parcel (the Remainder Tract)—the\n\nN1/2SE1/4 and SE1/4SE1/4—is privately-owned by the O’Hare family, J. Elmer and\n\nWanda Lee Kenner, and Irma Rowse.\n\n The leases of the Tracts\n\n On June 6, 1974, the Tribe, acting pursuant to the Indian Mineral Leasing Act\n\nof 1938, 25 U.S.C. §§ 396a-396g (2012), issued to Sun Oil Company an Indian oil\n\nand gas lease, Mining Lease Contract No. MOO-C-1420-1531, for its mineral estate\n\nin the Tribe Tract. Amoco Production Company (Amoco) later took over as the\n\nlessee.\n\n\n\n\n 3\n\f On April 28, 1995, the O’Hares issued to Maralex1 a private oil and gas lease\n\nfor the O’Hare Tract. SG Interests III, Ltd. (SG III) later joined Maralex as co-\n\nlessee.\n\n The O’Hares, Kenners, and Rowse issued three private oil and gas leases\n\ncovering the Remainder Tract. SG III and Maralex became the lessees of those\n\nleases.\n\n The Communitization Agreement\n\n In 1996, all of the parties (SG III, Maralex, the Tribe, the O’Hares, Kenners,\n\nand Rowe) “communitized” their coal and gas interests in the Parcel under the terms\n\nof a written agreement. More specifically, in a written Communitization Agreement\n\n(CA) dated May 1, 1996, the parties agreed to develop and operate the Parcel “as an\n\nentirety, with the understanding and agreement . . . that all Communitized Substances\n\nproduced therefrom [would] be allocated among the leaseholds comprising said area\n\nin the proportion that the acreage interest of each leasehold bears to the entire\n\nacreage interest committed to [the CA].” Aplt. App. at 3. The CA further stated, in\n\npertinent part, that “[t]he royalties payable on Communitized Substances allocated to\n\nthe individual leases comprising the [Tract] . . . shall be determined and paid on the\n\nbasis prescribed in each of the individual leases.” Id.\n\n Two other provisions of the CA are relevant to this case. First, the CA stated:\n\n“This agreement shall be subject to all applicable Federal and State laws or executive\n\n\n 1\n According to the record on appeal, Mary O’Hare is the president of Maralex.\nAplt. App. at 8.\n 4\n\forders, rules and regulations . . . .” Id. at 4. In addition, the CA stated: “It is agreed\n\nbetween the Parties Hereto that the Secretary of the Interior, or his duly Authorized\n\nOfficer, shall have the right of supervision over all operations within the\n\nCommunitized Area to the extent same includes the oil and gas lease(s) under which\n\nthe . . . Tribe is lessor and insofar as governed by applicable oil and gas regulations\n\nof the Department of Interior.” Id. at 5.\n\n The CA was approved by the Tribe and the Bureau of Indian Affairs (BIA)\n\neffective May 1, 1996.\n\n The wells operating under the CA\n\n There are four wells associated with the CA and arising from the underlying\n\nleases, all of which are operated by Maralex. The four wells are physically situated\n\nin two areas on the O’Hares’ private surface estate in the O’Hare Tract. Each such\n\narea is enclosed by a fence and a locked gate. All four of the wells are producing\n\n“both fee and Tribal minerals” from the Fruitland coal formation. Id. at 32.\n\nAlthough the oil and gas at issue is produced from private mineral interests and from\n\nwells situated on private surface estates, such production is, under the terms of the\n\nCA, allocated to all of the oil and gas interests, including that of the Tribe, as the\n\nowner of record title to the mineral estate in the Tribe’s Section of the Parcel.\n\n BLM’s attempt to inspect the wells\n\n On February 11, 2013, Gabriel Trujillo, a Petroleum Engineering Technician\n\nemployed by the BLM, sent an email to Maralex stating that he planned to inspect the\n\nfour wells. On February 12, 2013, Christi Reid, a Maralex employee, responded by\n\n 5\n\femail, noted that the wells were situated “on Mickey O’Hare’s property,” and stated\n\nthat she envisioned “problems with him granting access” to Trujillo. Id. at 18. One\n\nday later, on February 13, 2013, Reid emailed Trujillo again, stating: “I talked to\n\nMickey O’Hare and let him know that you want to inspect the . . . wells. He wants to\n\ntalk to you directly . . . .” Id.\n\n On February 22, 2013, Trujillo drove to the Parcel in an attempt to examine\n\nthe wells. Upon arrival, Trujillo found that there was a locked gate that prevented\n\nhim from examining the wells. That same day, Trujillo spoke by phone with Mickey\n\nO’Hare. O’Hare informed Trujillo that he had no right to inspect the wells because\n\nO’Hare owned both the surface and mineral rights.\n\n BLM’s issuance of INCs to Maralex\n\n On February 26, 2013, Trujillo completed four official BLM forms entitled\n\n“Notice of Incidents of Noncompliance” (INC). Id. at 23. The INCs noted that\n\nTrujillo had attempted unsuccessfully to access the wells on February 22, 2013. The\n\nINCs, which were sent to Maralex, alleged that Maralex was in violation of 43 C.F.R.\n\n§ 3162.1(b), and they gave Maralex until March 25, 2013, to provide Trujillo and the\n\nBLM with access to the wells. In the “Remarks” section of the INCs, Trujillo stated:\n\n“For corrective action, I will need a key to access the location or be able to put a\n\nBLM lock in with it.” Id. at 24.\n\n Maralex’s administrative appeal of the INCs\n\n On March 27, 2013, a law firm representing Maralex and the O’Hares sent a\n\nletter to BLM appealing the four INCs. The letter asserted that the BLM had\n\n 6\n\fmisinterpreted its authority to inspect oil and gas wells located on private land. More\n\nspecifically, the letter asserted that the BLM “ha[d] limited authority to inspect\n\nfacilities on Fee Tracts” and that the applicable regulations “only allow[ed] annual\n\ninspections” of such wells. Id. at 33. The letter also asserted that “there [wa]s no\n\nstatutory authority nor . . . any legitimate justification for giving the BLM unbridled\n\ndiscretion to search the facilities at issue in order to ensure that there [wa]s adequate\n\nsite security measurement and that Maralex [wa]s properly measuring the production\n\nand operation of the wells.” Id. “Thus,” the letter asserted, “BLM’s request for a\n\nkey to any gates to conduct inspections [wa]s violative of Maralex’s constitutionally\n\nguaranteed protection against unreasonable searches under the Fourth Amendment.”\n\nId. Lastly, the letter asserted that “there [wa]s no legal authority for the BLM’s\n\ndemand for unfettered access to the O’Hare’s surface.” Id. And the letter argued that\n\n“[i]f the BLM was entitled to unfettered right to access O’Hare’s property under\n\nSection 3162.1(b), it would constitute a regulatory taking of O’Hare’s property in\n\nviolation of O’Hare’s property rights as guarantee [sic] by the takings clause of the\n\nFifth Amendment.” Id. at 34.\n\n On April 10, 2013, the BLM notified Maralex’s counsel that it was treating the\n\nMarch 27, 2013 letter “as a request for State Director’s review (SDR) . . . under 43\n\nCFR 3165.3.” Id. at 88.\n\n On July 9, 2013, the BLM’s Deputy State Director, Energy, Lands, and\n\nMinerals, Colorado State Office, sent a letter to Maralex’s counsel responding to\n\neach point raised by Maralex’s counsel. The letter disagreed that the applicable\n\n 7\n\fregulations allowed only for “annual inspections for fee tracts in a CA.” Id. at 90.\n\nRather, the letter asserted, the “inspected annually” language in the regulation merely\n\nestablished a minimum standard as to what was to be accomplished. Id. As for its\n\nauthority to conduct inspections of the wells, the BLM noted that\n\n Section 101(b) of the Federal Oil and Gas Royalty Management Act of\n 1982 (FOGRMA) provides that, “Authorized and properly identified\n representatives of the Secretary may without advance notice, enter\n upon, travel across and inspect lease sites on Federal or Indian lands\n and may obtain from the operator immediate access to secured facilities\n on such lease sites, for the purpose of making any inspection or\n investigation for determining whether there is compliance with the\n requirements of the minearal [sic] leasing laws and this Act.”\n\nId. at 90-91 (italics in original). The BLM in turn stated that “[s]ince the subject\n\nwells’ production is subject to a federal CA and the government receives a portion of\n\nthe production’s royalty, the BLM is responsible for assuring production\n\naccountability” and that “[t]his includes inspections for site security, proper handling,\n\nmeasurement and reporting of production and protection against product theft.” Id. at\n\n91. “Therefore,” the letter stated, “BLM must be allowed to perform the production\n\nrelated inspection which necessitates physical access to the subject wells and their\n\nassociated facilities without advance notice.” Id. In a section entitled “Decision,”\n\nthe letter stated:\n\n Upon review, the four INCs covering denied access to the subject\n wells were properly issued and are upheld. The stay of enforcement\n action granted in our April 10, 2013, letter to Maralex is hereby lifted.\n\n Maralex must provide the BLM Tres Rios Field Office access\n without advance notice as required by the INCs and the regulations. If\n Maralex chooses not to provide access as required, Maralex will be\n subject to assessments pursuant to 43 CFR 3163.1. In addition further\n\n 8\n\f non-compliance shall result in proposed civil penalties pursuant to 43\n CFR 3163.2(e)(1).\n\nId. at 93.\n\n On August 20, 2013, Maralex’s counsel sent the BLM a notice of appeal of the\n\nJuly 9, 2013 decision. Id. at 97. Maralex’s counsel followed that up by filing with\n\nthe IBLA a Statement of Reasons for Appeal. Id. at 98. The Statement of Reasons\n\nargued that the regulation relied on by the BLM, 43 C.F.R. § 3162.1(b), applies only\n\n“to Federal and Indian lease sites,” and that “there is no statutory authority to support\n\nthe BLM’s suggestion that it has the right to conduct warrantless searches of\n\nMaralex’s facilities.” Id. at 113. “Thus,” the Statement of Reasons asserted, “BLM’s\n\nrequest violates Maralex’s right not to be subject to unreasonable searches as\n\nguaranteed by the Fourth Amendment.” Id. Lastly, the Statement of Reasons\n\nasserted that “if the BLM does have the statutory and regulatory authority to access\n\nthe O’Hare’s Fee Tract at any time, such authority would constitute a regulatory\n\ntaking of the O’Hare’s property in violation of their due process rights under the\n\nFifth Amendment.” Id.\n\n On July 10, 2015, the IBLA issued a written decision affirming the BLM’s\n\nJuly 9, 2013 decision. In doing so, the IBLA did not address whether plaintiffs were\n\nrequired to provide the BLM with a key or allow the BLM to install its own locks on\n\nMaralex’s gates, nor did the IBLA address plaintiffs’ constitutional arguments.\n\n The district court proceedings\n\n\n\n\n 9\n\f On September 1, 2015, Maralex and the O’Hares initiated these proceedings\n\nby filing a complaint in federal district court against the Secretary, the Department of\n\nthe Interior, and the United States. The complaint sought reversal of the IBLA’s\n\ndecision, as well as declaratory relief.\n\n On October 19, 2017, the district court issued an order affirming the IBLA’s\n\ndetermination. Plaintiffs now appeal.\n\n II\n\n Plaintiffs raise two issues on appeal: (1) whether they waived their argument\n\nthat the BLM lacked authority to require them to provide the BLM with keys to the\n\nlocked gates on the O’Hares’ private property or, alternatively, to allow the BLM to\n\nplace its own locks on those gates; and (2) whether the BLM has statutory or\n\nregulatory authority to require plaintiffs to provide the BLM with keys to locked\n\ngates on privately-owned lands or, alternatively, to allow the BLM to place its own\n\nlocks on such gates.2 As discussed in more detail below, whether plaintiffs waived\n\ntheir argument is a close question, but assuming they did, we nevertheless exercise\n\ndiscretion to address the underlying issue. We in turn conclude that BLM lacked\n\nauthority to impose the “key or lock” requirement.\n\n Did plaintiffs waive their argument that the BLM lacked authority\n to require them to provide keys to their locked gates or to allow the\n BLM to place its own locks on those gates?\n\n\n 2\n Until recently, plaintiffs asserted three additional issues on appeal, including\nFourth and Fifth Amendment challenges to the inspection protocol advocated by the\nBLM. At oral argument, however, plaintiffs abandoned those issues. Consequently,\nwe do not address them.\n 10\n\f As noted, plaintiffs first argue that the district court erred in concluding that\n\nthey waived their argument that the BLM lacked authority to require them to provide\n\nthe BLM with keys to locked gates or to allow the BLM to place its own locks on\n\nthose gates. The district court concluded that plaintiffs “did not present to the IBLA\n\nthis particular argument that the BLM’s corrective action exceeded its authority.”\n\nAplt. App. at 207-08. The district court in turn concluded “that Plaintiffs waived this\n\nargument for purposes of this appeal and [it] decline[d] to consider it.” Id. at 208.\n\n To resolve this issue, we begin by turning to the record. Plaintiffs, in their\n\ninitial appeal of the INCs, “claim[ed] that BLM ha[d] no statutory authority or\n\nlegitimate justification giving the BLM unbridled discretion to search the subject\n\nwell facilities in order to ensure site security and proper measurement” and that,\n\nconsequently, “the BLM’s request for a key to any gates to conduct inspections [wa]s\n\nin violation of Maralex’s constitutionally guaranteed protection against unreasonable\n\nsearches under the Fourth Amendment.” Aplt. App. at 90.\n\n In their appeal to the IBLA from the State Director’s decision denying their\n\ninitial appeal, plaintiffs argued, in pertinent part, that “there [wa]s no statutory\n\nauthority nor . . . any legitimate justification for giving the BLM unbridled discretion\n\nto search the facilities at issue at any time and without notice,” and that,\n\nconsequently, “BLM’s request for a key to any gates to conduct unannounced\n\ninspections [wa]s violative of Maralex’s constitutionally guaranteed protection\n\nagainst unreasonable searches under the Fourth Amendment.” Id. at 102. Plaintiffs\n\nfurther argued that “there [wa]s no statutory support for warrantless, unannounced\n\n 11\n\finspections of [the] Fee Tracts,” and thus the BLM could not “rely on” its own\n\nregulations “for conducting unannounced, warrantless searches of the sites at issue.”\n\nId. at 107–08. Plaintiffs also argued that “Paragraph 13” of the CA “does not provide\n\nthe BLM with the unlimited right to conduct inspections without advance notice nor\n\ndoes it form the basis for giving the BLM a key to have unlimited physical access to\n\nthe wells and related facilities on Fee Tracts, which is applicable only to Federal and\n\nIndian lease sites.” Id. at 112. Lastly, the plaintiffs challenged the State Director’s\n\nrejection of “the O’Hare’s [sic] assertion that forcing them to supply the BLM with a\n\nkey to a lock to allow the BLM to have physical access to their surface property for\n\nunannounced inspections of Maralex’s wells and related facilities located on the\n\nO’Hare’s [sic] surface constitute[d] an unauthorized takings under the Fifth\n\nAmendment.” Id. at 112-13.\n\n In our view, it is a close question whether plaintiffs presented their argument\n\nto the IBLA that BLM exceeded its statutory and regulatory authority by requiring a\n\nkey or lock in the INCs. On the one hand, plaintiffs clearly argued, as part of their\n\nFourth Amendment challenge, that the BLM lacked both statutory and regulatory\n\nauthority to impose the key/lock requirement. On the other hand, plaintiffs expressly\n\nasserted before the IBLA that it lacked authority to address their Fourth Amendment\n\nchallenge and they asked the IBLA not to consider it.\n\n Even assuming, however, that plaintiffs failed to properly present to the IBLA\n\ntheir argument that the key/lock requirement exceeded the BLM’s statutory and\n\nregulatory authority, we nevertheless choose to exercise our discretion to address that\n\n 12\n\fissue.3 See U.S. Nat’l Bank of Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S.\n\n439, 447–48 (1993) (discussing authority of appellate court to address potentially\n\nwaived issue). We have held, albeit in a slightly different context, that we may\n\ndepart from general waiver principles “particularly when we are presented with a\n\nstrictly legal question, the proper resolution of which is beyond doubt or when\n\nmanifest injustice would otherwise result.” Daigle v. Shell Oil Co., 972 F.2d 1527,\n\n1539 (10th Cir. 1992). Further, in considering whether to address an alternative\n\ntheory, we take into account (1) “whether the ground was fully briefed and argued\n\nhere and below,” (2) “whether the parties have had a fair opportunity to develop the\n\nfactual record,” and (3) “whether, in light of factual findings to which we defer or\n\nuncontested facts, our decision would involve only questions of law.” Elkins v.\n\nComfort, 392 F.3d 1159, 1162 (10th Cir. 2004) (citations omitted).\n\n In this case, the issue of the BLM’s statutory and regulatory authority has been\n\nfully briefed and argued in this court by both sides. Further, the factual record is\n\nessentially undisputed and, thus, we are presented with only a question of law.\n\nLastly, and perhaps most importantly, the BLM has indicated its intention to enforce\n\nthe key/lock requirement at the conclusion of this litigation. On October 22, 2018,\n\n\n 3\n We are not aware of, nor has the BLM cited to, any authority holding that\npreservation of the issue before the IBLA is a jurisdictional prerequisite. See Air\nCourier Conference of Am. v. Am. Postal Workers Union AFL-CIO, 498 U.S. 517,\n523 n.3 (1991) (“The judicial review provisions of the APA are not jurisdictional . . .\n.”); Chissoe v. Zinke, 725 F. App’x 614, 621 (10th Cir. 2018) (stating that “judicial\nexhaustion requirements under the APA are prudential only.”); Vietnam Veterans of\nAm. v. Shinseki, 599 F.3d 654, 661 (D.C. Cir. 2010) (“We think the proposition that\nthe review provisions of the APA are not jurisdictional is now firmly established.”).\n 13\n\fwe issued an order to show cause directing the parties to address, in pertinent part,\n\nthe question of whether the BLM was continuing to require Maralex to provide the\n\nBLM with a key to the lock on the O’Hares’ gate or to allow the BLM to place its\n\nown lock on the gate. On December 18, 2018, defendants responded that, indeed,\n\n“BLM continues to require Maralex to either provide the agency with a key to the\n\nlock on the O’Hares’ gate or allow BLM to place its own lock on the gate.” Aple.\n\nResp. to Order to Show Cause at 2. Defendants asserted that, “[i]n the absence of\n\ncompliance with the [key/lock requirement] in the INCs, Mr. O’Hare may refuse\n\nBLM access to the wells at any time, as he did in February 2013 (which led to BLM’s\n\nissuance of the INCs).” Id. at 3. Thus, despite the fact that the INCs were issued\n\nnearly six years ago, it is clear that the BLM intends to enforce the key/lock\n\nrequirement once this litigation ends. For this reason, we conclude that the interests\n\nof justice are best served if we address the merits of plaintiffs’ argument that BLM\n\nlacks statutory and regulatory authority to impose the key/lock requirement.\n\n Does the BLM have authority to require a landowner or operator\n to provide the BLM with keys to the landowner’s locked gates or allow\n the BLM to place its own locks on the landowner’s gates?\n\n We now turn to the merits of plaintiffs’ argument. Plaintiffs assert that, even\n\nassuming some statutory or regulatory authority exists for the BLM to conduct\n\ninspections on fee lands without advanced notice, “there are limits to such\n\ninspections.” Aplt. Br. at 40. Plaintiffs point to the language of 30 U.S.C. § 1718 to\n\nsupport their position. Section 1718, plaintiffs note, “limits the right to enter upon,\n\ntravel across and inspect lease sites to not only ‘authorized’ representatives of the\n\n 14\n\fSecretary, but to representatives that are ‘properly identified.’” Id. And, plaintiffs\n\nargue, “[b]ecause the landowner and the operator have the right to ensure that the\n\nrepresentative is properly identified, the BLM cannot force either the landowner or\n\nthe operator to provide a key to the landowner’s locked gates or be forced to allow\n\nthe BLM to place a lock on the landowner’s locked gates since by doing so neither\n\nthe landowner nor operator will be able to check the identification of the person(s)\n\nentering upon, travelling across, and/or inspecting the facilities.” Id. at 40-41.\n\nLastly, plaintiffs argue that “[a]ll that is required of the operator under Section\n\n1718(b) is to provide ‘immediate access to secured facilities’ to a properly identified\n\nrepresentative of the Secretary.” Id. at 41. This means, plaintiffs argue, that “if the\n\noperator is on site at the time of the inspection, it is required to open any gates or\n\notherwise secured facilities” and “[i]f the operator is not on the lease site when the\n\nauthorized, properly identified representative arrives at the lease site, then the\n\noperator is required to go to the lease site and provide immediate access.” Id.\n\n Defendants argue, in response, that “the INCs’ corrective action requiring\n\nPlaintiffs to provide BLM with key or lock access is permissible under the statute and\n\nthe regulations.” Aple. Br. at 39. In particular, defendants assert that “FOGRMA\n\nand its implementing regulations provide that any person who fails to allow\n\nauthorized inspections is liable for penalties, which may not be applied if the liable\n\nperson takes the prescribed corrective action within the required timeframe.” Id.\n\n a) Standard of review\n\n\n\n 15\n\f Although this is an appeal from the district court’s decision, we accord no\n\nparticular deference to that decision. Instead, we conduct our own independent\n\nreview of the agency’s decision. Exxon Mobil Oil Corp. v. Norton, 346 F.3d 1244,\n\n1248 (10th Cir. 2003). Under the Administrative Procedures Act, we will “set aside\n\nagency’s action if it is arbitrary, capricious, an abuse of discretion, or otherwise not\n\nin accordance with law.” Utah Envtl. Cong. v. Bosworth, 439 F.3d 1184, 1188 (10th\n\nCir. 2006) (internal quotations omitted); see 5 U.S.C. § 706(2)(A).\n\n When reviewing an agency’s interpretation of a statute it administers, we first\n\ndetermine whether Congress has directly spoken to the precise issue. See Chevron,\n\nU.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984); Cliffs Synfuel\n\nCorp. v. Norton, 291 F.3d 1250, 1257 (10th Cir. 2002). “If the intent of Congress is\n\nclear, that is the end of the matter; for the court . . . must give effect to the\n\nunambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842–43. If,\n\nhowever, the statute is silent or ambiguous on the issue in question, we do not impose\n\nour own construction on the statute, but rather ascertain whether the agency’s\n\ninterpretation is a permissible construction of the statute. Id. at 843. If it is, we defer\n\nto that interpretation. Id. at 844. Our review of federal regulations is similar. “In the\n\nusual course, when an agency is authorized by Congress to issue regulations and\n\npromulgates a regulation interpreting a statute it enforces, the interpretation receives\n\ndeference if the statute is ambiguous and if the agency’s interpretation is reasonable.”\n\nEncino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2124 (2016). “This principle is\n\nimplemented by the two-step analysis set forth in Chevron.” Id. “At the first step, a\n\n 16\n\fcourt must determine whether Congress has ‘directly spoken to the precise question\n\nat issue.” Encino, 136 S. Ct. at 2124 (quoting Chevron, 467 U.S. at 842). “If the\n\nintent of Congress is clear, that is the end of the matter; for the court, as well as the\n\nagency, must give effect to the unambiguously expressed intent of Congress.”4\n\nChevron, 467 U.S. at 842-43. “If not, then at the second step the court must defer to\n\nthe agency’s interpretation if it is ‘reasonable.’” Encino, 136 S. Ct. at 2125 (quoting\n\nChevron, 467 U.S. at 844). “It is well established that an agency’s interpretation\n\nneed not be the only possible reading of a regulation—or even the best one—to\n\nprevail.” Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 613 (2013). “When an\n\nagency interprets its own regulation, the Court, as a general rule, defers to it unless\n\nthat interpretation is plainly erroneous or inconsistent with the regulation.” Id.\n\n(quotation marks omitted).\n\n b) Analysis\n\n We begin our analysis by briefly examining the overall statutory and\n\nregulatory scheme for inspections of oil and gas lease sites that implicate Indian\n\n\n\n\n 4\n At the first step of the Chevron analysis, “we must giv[e] all undefined terms\ntheir ordinary meaning.’” Nat’l Credit Union Admin. Bd. v. Nomura Home Equity\nLoan, Inc., 764 F.3d 1199, 1227 (10th Cir. 2014) (quoting Fed. Hous. Fin. Agency v.\nUBS Americas Inc., 712 F.3d 136, 141 (2d Cir. 2013)). “We may consult a\ndictionary to determine the plain meaning of a term” and may “also take into account\nthe broader context of the statute as a whole when ascertaining the meaning of a\nparticular provision.” Conrad v. Phone Directories Co., 585 F.3d 1376, 1381 (10th\nCir. 2009) (quotation marks and citation omitted).\n 17\n\fmineral interests. In § 1702 of FOGRMA, Congress set forth the following\n\ndefinitions that are relevant to understanding the substantive provisions of the Act:\n\n (1) “Federal land” means all land and interests in land owned by the\n United States which are subject to the mineral leasing laws, including\n mineral resources or mineral estates reserved to the United States in the\n conveyance of a surface or nonmineral estate;\n ···\n (3) “Indian lands” means any lands or interest in lands of an Indian tribe\n or an Indian allottee held in trust by the United States or which is\n subject to Federal restriction against alienation or which is administered\n by the United States pursuant to section 14(g) of Public Law 92-203 [43\n USC § 1613(g)], as amended, including mineral resources and mineral\n estates reserved to an Indian tribe or an Indian allottee in the\n conveyance of a surface or nonmineral estate, except that such term\n does not include any lands subject to the provisions of section 3 of the\n Act of June 28, 1906 (34 Stat. 539) [unclassified];\n ···\n (5) “lease” means any contract, profit-share arrangement, joint venture,\n or other agreement issued or approved by the United States under a\n mineral leasing law that authorizes exploration for, extraction of, or\n removal of oil or gas;\n (6) “lease site” means any lands or submerged lands, including the\n surface of a severed mineral estate, on which exploration for, or\n extraction or removal of, oil or gas is authorized pursuant to a lease;\n ···\n\n30 U.S.C. § 1702(1), (3), (5), (6).\n\n In our view, the plain language of the statutory definition of “lease” includes\n\ncommunitization agreements approved by the United States, such as the one at issue\n\nin this case. More specifically, a communitization agreement is a “contract” or\n\n“other agreement” that, depending upon the circumstances, has been “approved by\n\nthe United States under a mineral leasing law,” i.e., federal law governing mineral\n\nrights on Indian and trust land, “that authorizes exploration for, extraction of, or\n\n\n\n 18\n\fremoval of oil or gas.”5 Thus, the statutory definition of “lease site” necessarily\n\nincludes any lands, including privately-owned lands, on which exploration for and\n\nextraction of oil and gas is occurring pursuant to a communitization agreement.\n\n Section 1718 of FOGRMA, entitled “Inspection,” provides in pertinent part as\n\nfollows:\n\n (b) Inspection of lease sites for compliance with mineral leasing laws\n and 30 USCS §§ 1701 et seq. Authorized and properly identified\n representatives of the Secretary may without advance notice, enter upon,\n travel across and inspect lease sites on Federal or Indian lands and may\n obtain from the operator immediate access to secured facilities on such\n lease sites, for the purpose of making any inspection or investigation for\n determining whether there is compliance with the requirements of the\n mineral leasing laws and this Act. The Secretary shall develop\n guidelines setting forth the coverage and the frequency of such\n inspections.\n\n30 U.S.C. §1718(b). Although § 1718(b) incorporates the statutory phrase “lease\n\nsites,” it proceeds to limit the scope of that phrase by authorizing BLM\n\nrepresentatives to, “without advance notice, enter upon, travel across and inspect”\n\nlease sites that exist “on Federal or Indian lands,” i.e., non-fee lands owned by the\n\nUnited States or held in trust by the United States for a tribe, and that arise out of\n\n\n 5\n Neither the IBLA nor the BLM have expressly adopted this broad definition\nof “lease.” Instead, the IBLA interpreted the identically-worded regulatory definition\nof the term “lease site” to include more than “Federal or Indian lease sites,” and also\nconcluded that the identically-worded regulatory definition of the term “lease” was\nnot incorporated into the regulatory phrase “lease site.” Aplt. App. at 170, 174. We\nreject this latter conclusion as inconsistent with the statutory language and normal\nrules of statutory construction. In particular, “it is a normal rule of statutory\nconstruction that identical words used in different parts of the same act are intended\nto have the same meaning,” and we see no evidence that Congress intended for the\nterm “lease,” as used in the term “lease site,” to carry a different meaning. Pereira v.\nSessions, 138 S. Ct. 2105, 2115 (2018).\n 19\n\fcontracts or agreements issued or approved by the United States. Further, the statute\n\nis silent with respect to how, if at all, BLM representatives may access lease sites on\n\nprivately-owned lands.\n\n Defendants concede that “Congress did not expressly address the application\n\nof Section 1718(b) inspection authority to fee lands committed to communitization\n\nagreements.” Aple. Br. at 15. But, defendants argue, “[g]iven that ambiguity, BLM\n\nreasonably exercised its delegated rulemaking authority to include the inspection of\n\nfee lands that, like the O’Hares’, are subject to a communitization agreement that was\n\napproved by the Department and involves Indian lands where the affected tribe shares\n\nin the production and royalties of the oil and gas operation.” Id.\n\n Defendants’ arguments hinge on the threshold question of whether § 1718(b) is\n\nambiguous or not. A statute is “ambiguous if it is reasonably susceptible to more\n\nthan one interpretation or capable of being understood in two or more possible senses\n\nor ways.” Nat’l Credit Union Admin. Bd. v. Nomura Home Equity Loan, Inc., 764\n\nF.3d 1199, 1226 (10th Cir. 2014) (quotations and citations omitted); see Chickasaw\n\nNation v. United States, 534 U.S. 84, 90 (2001). Although it may be reasonable from\n\na policy standpoint for the BLM to have authority to inspect fee lands that are subject\n\nto a communitization agreement approved by the United States, § 1718(b) simply is\n\nnot ambiguous and thus does not provide the BLM with any authority to exercise its\n\ndelegated rulemaking authority on that issue. As noted, § 1718(b) quite clearly limits\n\nthe BLM’s inspection authority to lease sites on federal and Indian lands.\n\n\n\n 20\n\f To be sure, § 1718(b) is silent with respect to inspections of lease sites on fee\n\nlands, but that silence does not render the statute ambiguous. See Spring Creek Expl.\n\n& Prod. Co. v. Hess Bakken Inv., II, LLC, 887 F.3d 1003, 1018 (10th Cir. 2018)\n\n(“silence is not ambiguity”). When the Supreme Court has discussed the exercise of\n\nagency discretion “‘in the interstices created by statutory silence,’” it has done so\n\nonly when “considering undefined terms in a statute or statutory directive to perform\n\na specific task without giving detailed instructions.” Marlow v. New Food Guy, Inc.,\n\n861 F.3d 1157, 1162 (10th Cir. 2017) (quoting Util. Air Regulatory Grp. v. EPA, 134\n\nS. Ct. 2427, 2445 (2014) (internal quotation marks omitted)). And that is simply not\n\nthe case with § 1718(b). As noted, § 1718(b) plainly focuses on lease sites “on\n\nFederal or Indian lands” and does not otherwise leave any terms or statutory\n\ndirectives undefined.\n\n For these reasons then, we conclude that § 1718(b) does not afford the BLM\n\nwith authority to inspect lease sites on privately-owned lands. Thus, we must look\n\nelsewhere to determine whether any authority exists for the BLM’s proposed\n\ninspections of the wells in this case.\n\n The Secretary has issued regulations implementing the various statutory\n\ndirectives outlined by Congress in FOGRMA. To begin with, 43 C.F.R. § 3161.1(b)\n\nstates:\n\n The regulations in this part and 43 CFR part 3170, including subparts\n 3173, 3174, and 3175, relating to site security, measurement of oil and\n gas, reporting of production and operations, and assessments or\n penalties for non-compliance with such requirements, are applicable to\n all wells and facilities on State or privately owned lands committed to a\n\n 21\n\f unit or communitization agreement, which include Federal or Indian\n lease interests, notwithstanding any provision of a unit or\n communitization agreement to the contrary.\n\n43 C.F.R. § 3161.1(b) (emphasis added).\n\n In turn, 43 C.F.R. § 3161.3, entitled “Inspections,” states:\n\n (a) The authorized officer shall establish procedures to ensure that each\n Federal and Indian lease site which is producing or is expected to\n produce significant quantities of oil or gas in any year or which has a\n history of noncompliance with applicable provisions of law or\n regulations, lease terms, orders or directives shall be inspected at least\n once annually. Similarly, each lease site on non-Federal or non-Indian\n lands subject to a formal agreement such as a unit or communitization\n agreement which has been approved by the Department of the Interior\n and in which the United States or the Indian lessors share in production\n shall be inspected annually whenever any of the foregoing criteria are\n applicable.\n (b) In accomplishing the inspections, the authorized officer may utilize\n Bureau personnel, may enter into cooperative agreements with States or\n Indian Tribes, may delegate the inspection authority to any State, or\n may contract with any non-Federal Government entities. Any\n cooperative agreement, delegation or contractual arrangement shall not\n be effective without concurrence of the Secretary and shall include\n applicable provisions of the Federal Oil and Gas Royalty Management\n Act.\n\n43 C.F.R. § 3163.3(a) and (b).6\n\n Lastly, 43 C.F.R. § 3162.1, which discusses “General requirements” for\n\noperating rights owners and operators, states:\n\n (a) The operating rights owner or operator, as appropriate, shall comply\n with applicable laws and regulations; with the lease terms, Onshore Oil\n\n 6\n The Secretary’s authority to enact the portion of this regulation concerning\ninspections on privately-owned lands arises both from the general purposes\nprovisions of FOGRMA, § 1701(b)(3)-(5), as well as § 1711(a) and (b). Section\n1711(a) directs the Secretary, in part, to “establish a comprehensive inspection . . .\nsystem,” and §1711(b) directs the Secretary to conduct annual inspections of certain\nlease sites, without limitation to sites contained on Federal or Indian lands.\n 22\n\f and Gas Orders, NTL’s; and with other orders and instructions of the\n authorized officer. These include, but are not limited to, conducting all\n operations in a manner which ensures the proper handling,\n measurement, disposition, and site security of leasehold production;\n which protects other natural resources and environmental quality; which\n protects life and property; and which results in maximum ultimate\n economic recovery of oil and gas with minimum waste and with\n minimum adverse effect on ultimate recovery of other mineral\n resources.\n\n (b) The operator shall permit properly identified authorized\n representatives to enter upon, travel across and inspect lease sites and\n records normally kept on the lease pertinent thereto without advance\n notice. Inspections normally will be conducted during those hours when\n responsible persons are expected to be present at the operation being\n inspected. Such permission shall include access to secured facilities on\n such lease sites for the purpose of making any inspection or\n investigation for determining whether there is compliance with the\n mineral leasing laws, the regulations in this part, and any applicable\n orders, notices or directives.\n\n (c) For the purpose of making any inspection or investigation, the\n Secretary or his authorized representative shall have the same right to\n enter upon or travel across any lease site as the operator has acquired\n by purchase, condemnation or otherwise.\n\n43 C.F.R. § 3162.1 (emphasis added).7\n\n The regulatory provisions thus provide for an inspection framework that\n\napplies to federal, Indian, and certain privately-owned lands, but that, not\n\nsurprisingly, provides the BLM with greater inspection authority over federal and\n\nIndian lands than privately-owned lands. With respect to lease sites on federal and\n\nIndian land that are “producing or . . . expected to produce significant quantities of\n\noil or gas in a year or which ha[ve] a history of noncompliance with applicable\n\n\n 7\n It was this regulation that Maralex was cited for violating in the four INCs.\nAplt. App. at 168.\n 23\n\fprovisions of law or regulations,” BLM representatives must inspect such lease sites\n\n“at least once annually.” 43 C.F.R. § 3161.3(a). As for lease sites on privately-\n\nowned lands that are committed to a unit or communitization agreement that has been\n\napproved by the Department of the Interior, they are required to “be inspected\n\nannually whenever” they are “producing or . . . expected to produce significant\n\nquantities of oil or gas in any year or” if they “ha[ve] a history of noncompliance\n\nwith applicable provisions of law or regulations.”8 43 C.F.R. § 3161.3(a). They can\n\nalso be inspected by the BLM for purposes of assessing “site security, measurement,\n\nreporting of production and operations, and assessments or penalties for\n\nnoncompliance with such requirements.” 43 C.F.R. § 3161.2. Further, the operating\n\nrights owner or operator of any such lease site on privately-owned land is required to\n\n“permit properly identified authorized representatives” of the BLM “to enter upon,\n\ntravel across and inspect lease sites and records normally kept on the lease pertinent\n\nthereto without advance notice.” 43 C.F.R. § 3162.1(b). Any such inspections,\n\nhowever, must normally “be conducted during those hours when responsible persons\n\nare expected to be present at the operation being inspected.” Id. In addition, “[s]uch\n\npermission” by the operating rights owner or operator “shall include access to\n\nsecured facilities on such lease sites for the purpose of making any inspection or\n\ninvestigation for determining whether there is compliance with the mineral leasing\n\n\n\n 8\n In this case, the IBLA expressly found that the wells at issue “are producing\nor expected to produce significant quantities of oil and gas,” thus rendering the wells\nsubject to annual inspection under § 3163.3(a). Aplt. App. at 172.\n 24\n\flaws, the regulations . . . , and any applicable orders, notices or directives.” Id.\n\nLastly, BLM representatives are, “for the purpose of making any inspection or\n\ninvestigation,” afforded the same right of entry to and travel access across the lease\n\nsite “as the operator has acquired by purchase, condemnation or otherwise.” Id. §\n\n3162.1(c).\n\n Thus, at least for purposes of this case, the key difference between lease sites\n\non federal/Indian lands and lease sites on privately-owned land subject to a\n\ncommunitization agreement is how BLM representatives may access them. For lease\n\nsites on federal/Indian lands, BLM representatives have the right to enter those sites\n\nby themselves without first seeking permission from the operating rights owner or\n\noperator. In contrast, for lease sites on privately-owned lands, BLM representatives\n\nmay not independently enter the sites, but instead must seek entry (but do not have to\n\ngive advance notice) from the operating rights owner or operator and the operating\n\nrights owner or operator, as noted, is obligated to allow such entry.\n\n As for how often BLM representatives may inspect the wells, the regulations\n\ncontain no limitation. Indeed, the only reference to frequency of inspections is\n\ncontained in § 3161.3(a), which, as noted, requires lease sites meeting certain\n\nrequirements to be inspected at least once annually. Section 3161.3(a) does not,\n\nhowever, impose any upper limit on the number of inspections. In other words, as\n\nboth the State Director and the IBLA concluded in their respective decisions, “[t]he\n\n[regulatory] wording ‘inspected annually’ is a minimum standard not a maximum\n\nlimitation.” Aplt. App. at 90; see id. at 176 n.10 (IBLA decision).\n\n 25\n\f In sum, the BLM had authority to inspect the wells at issue. The question\n\nremains, however, whether BLM had authority to require Maralex to provide BLM\n\nwith “a key to access the location or” allow BLM to install its own locks. Aplt. App.\n\nat 24).\n\n We agree with plaintiffs that the BLM lacks authority to require an operator or\n\nlandowner to provide the BLM with a key to the landowner’s locked gates or to allow\n\nthe BLM to place its own locks on the landowner’s locked gates. But we arrive at\n\nthis conclusion in a different manner than suggested by plaintiffs. Although\n\nplaintiffs base many of their arguments on the language of § 1718(b), that statutory\n\nsubsection, as discussed above, does not apply at all to lease sites on privately-owned\n\nlands. Instead, the parameters of inspections of lease sites on privately-owned lands\n\nare outlined in two regulations: 30 C.F.R. §§ 3162.1 and 3163.3. Neither of those\n\nregulations provide any authority for the BLM to require an operating rights owner or\n\noperator (or, for that matter, a private landowner) to (a) provide BLM with a key to a\n\nlease site on privately-owned land, or (b) to install a BLM-lock on the gates to such\n\nlease site. Rather, as discussed above, the BLM has the right to conduct\n\nunannounced inspections of such sites, but must rely on the operating rights owner or\n\noperator to afford them entry to the lease site.\n\n Defendants, for their part, cite in their appellate brief to the statutory and\n\nregulatory provisions authorizing the BLM to take “corrective action.” Aple. Br. at\n\n39 (citing 30 U.S.C. §§ 1719(a)(2)(A), (a)(2)(B) and 43 C.F.R. § 3163.1(a)(4)).\n\nThose statutory provisions, however, speak only in terms of monetary “civil\n\n 26\n\fpenalties” (the amount of which depends upon how long the violation has gone on).\n\n30 U.S.C. §§ 1719(a)(2), (b). The regulatory provisions also mention the possibility\n\nof lease cancellations and criminal penalties. 43 C.F.R. §§ 3163.1(a)(5), 3163.3.\n\nNotably, nothing in the statutory and regulatory provisions mentions the remedy\n\nimposed on the plaintiffs in this case, i.e., requiring them to provide BLM with a key\n\nor to allow BLM to install its own locks. Although defendants concede this point,\n\nthey nevertheless argue that “it is reasonable to conclude that when a landowner\n\ndenies BLM entry, the very least that the agency can permissibly do under the statute\n\nis order any reasonable remedy that will yield the access required to carry out\n\nCongress’s charge.” Id. at 39-40. We reject that argument. Requiring the provision\n\nof a key or lock access is, without question, a drastic measure that would, at a\n\nminimum, require express congressional approval. Because no such approval\n\nappears in the relevant statutes or regulations, defendants’ arguments must be\n\nrejected.\n\n III\n\n We REVERSE and REMAND to the district court with directions to enter\n\njudgment in favor of plaintiffs on their claim that the BLM lacks authority to require\n\nplaintiffs to provide the BLM with a key to access the wells at issue or to allow BLM\n\nto install its own locks.\n\n\n\n\n 27\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: MARALEX RESOURCES, INC., a Colorado Corporation; Alexis M. O'Hare; Mary C. O'Hare, Plaintiffs - Appellants, v. David BARNHARDT, in His Official Capacity as Acting Secretary of the United States Department of the Interior; The United States Department of Interior; The United States of America, Defendants - Appellees.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-01-18\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS January 18, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n MARALEX RESOURCES, INC., a\\n Colorado corporation; ALEXIS M.\\n O'HARE; MARY C. O'HARE,\\n\\n Plaintiffs - Appellants,\\n\\n v. No. 17-1421\\n\\n DAVID BARNHARDT, in his official\\n capacity as Acting Secretary of the United\\n States Department of the Interior; THE\\n UNITED STATES DEPARTMENT OF\\n INTERIOR; THE UNITED STATES OF\\n AMERICA,\\n\\n Defendants - Appellees.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Colorado\\n (D.C. No. 1:15-CV-01893-CMA)\\n _________________________________\\n\\nWilliam E. Zimsky, Abadie & Schill, PC, Durango, Colorado, appearing for the\\nAppellants.\\n\\nTamara N. Rountree, Attorney, Environmental and Natural Resources Division, United\\nStates Department of Justice, Washington, DC (Jeffrey H. Wood, Acting Assistant\\nAttorney General, and Eric Grant, Deputy Assistant Attorney General, United States\\nDepartment of Justice, Washington, DC; William Lazarus and John L. Smeltzer,\\nAttorneys, Environmental and Natural Resources Division, United States Department of\\nJustice, Washington, DC; and Philip C. Lowe, Rocky Mountain Regional Solicitor’s\\n\\n \\n In accordance with Fed. R. App. P. 43(c)(2), David Barnhardt is substituted\\nfor Ryan Zinke, as the respondent in this action.\\n\\fOffice, Department of the Interior, Lakewood, Colorado, with her on the brief), appearing\\nfor the Appellee.\\n _________________________________\\n\\nBefore BRISCOE, LUCERO, and MATHESON, Circuit Judges.\\n _________________________________\\n\\nBRISCOE, Circuit Judge.\\n _________________________________\\n\\n Plaintiffs Maralex Resources, Inc. (Maralex), Alexis O’Hare and Mary C.\\n\\nO’Hare (the O’Hares) filed this action against the Secretary of the Department of the\\n\\nInterior (Secretary), the Department of the Interior, and the United States seeking\\n\\nreview of a decision of the Interior Board of Land Appeals (IBLA) upholding four\\n\\nNotices of Incidents of Noncompliance that were issued by the Bureau of Land\\n\\nManagement’s (BLM’s) Tres Rios Field Office to Maralex for failing to allow a\\n\\nBLM representative to access certain oil and gas lease sites operated by Maralex on\\n\\nland owned by the O’Hares. The district court affirmed the IBLA’s decision.\\n\\nPlaintiffs now appeal.\\n\\n Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we conclude that the\\n\\nBLM, in issuing the Notices of Incidents of Noncompliance, lacked authority to\\n\\nrequire plaintiffs to provide BLM with a key to a lease site on privately-owned land\\n\\nor to allow the BLM to install its own locks on the gates to such lease site.\\n\\nConsequently, we reverse and remand to the district court with instructions to enter\\n\\njudgment in favor of plaintiffs on this “key or lock” issue.\\n\\n\\n\\n\\n 2\\n\\f I\\n\\n The Parcel and its component Tracts\\n\\n At issue in this case is a 320-acre parcel of land (the Parcel) that is located in\\n\\nthe S1/2 of Section 35, Township 34 South, Range 7 West in La Plata County in\\n\\nsouthwestern Colorado. The Parcel, which is comprised of 240 acres of private\\n\\nsurface/mineral estate and 80 acres of Indian surface/mineral estate, lies over the\\n\\nIgnacio Blanco gas field and the Fruitland coal formation.\\n\\n The O’Hares own the surface and mineral estate in a 120-acre tract of land in\\n\\nthe SW1/4SE1/4 and E1/2SW1/4 of the Parcel (the O’Hare Tract). The Southern Ute\\n\\nIndian Tribe (Tribe) holds the surface and mineral estate in the W1/2SW1/4 of the\\n\\nParcel (the Tribe Tract). The remainder of the Parcel (the Remainder Tract)—the\\n\\nN1/2SE1/4 and SE1/4SE1/4—is privately-owned by the O’Hare family, J. Elmer and\\n\\nWanda Lee Kenner, and Irma Rowse.\\n\\n The leases of the Tracts\\n\\n On June 6, 1974, the Tribe, acting pursuant to the Indian Mineral Leasing Act\\n\\nof 1938, 25 U.S.C. §§ 396a-396g (2012), issued to Sun Oil Company an Indian oil\\n\\nand gas lease, Mining Lease Contract No. MOO-C-1420-1531, for its mineral estate\\n\\nin the Tribe Tract. Amoco Production Company (Amoco) later took over as the\\n\\nlessee.\\n\\n\\n\\n\\n 3\\n\\f On April 28, 1995, the O’Hares issued to Maralex1 a private oil and gas lease\\n\\nfor the O’Hare Tract. SG Interests III, Ltd. (SG III) later joined Maralex as co-\\n\\nlessee.\\n\\n The O’Hares, Kenners, and Rowse issued three private oil and gas leases\\n\\ncovering the Remainder Tract. SG III and Maralex became the lessees of those\\n\\nleases.\\n\\n The Communitization Agreement\\n\\n In 1996, all of the parties (SG III, Maralex, the Tribe, the O’Hares, Kenners,\\n\\nand Rowe) “communitized” their coal and gas interests in the Parcel under the terms\\n\\nof a written agreement. More specifically, in a written Communitization Agreement\\n\\n(CA) dated May 1, 1996, the parties agreed to develop and operate the Parcel “as an\\n\\nentirety, with the understanding and agreement . . . that all Communitized Substances\\n\\nproduced therefrom [would] be allocated among the leaseholds comprising said area\\n\\nin the proportion that the acreage interest of each leasehold bears to the entire\\n\\nacreage interest committed to [the CA].” Aplt. App. at 3. The CA further stated, in\\n\\npertinent part, that “[t]he royalties payable on Communitized Substances allocated to\\n\\nthe individual leases comprising the [Tract] . . . shall be determined and paid on the\\n\\nbasis prescribed in each of the individual leases.” Id.\\n\\n Two other provisions of the CA are relevant to this case. First, the CA stated:\\n\\n“This agreement shall be subject to all applicable Federal and State laws or executive\\n\\n\\n 1\\n According to the record on appeal, Mary O’Hare is the president of Maralex.\\nAplt. App. at 8.\\n 4\\n\\forders, rules and regulations . . . .” Id. at 4. In addition, the CA stated: “It is agreed\\n\\nbetween the Parties Hereto that the Secretary of the Interior, or his duly Authorized\\n\\nOfficer, shall have the right of supervision over all operations within the\\n\\nCommunitized Area to the extent same includes the oil and gas lease(s) under which\\n\\nthe . . . Tribe is lessor and insofar as governed by applicable oil and gas regulations\\n\\nof the Department of Interior.” Id. at 5.\\n\\n The CA was approved by the Tribe and the Bureau of Indian Affairs (BIA)\\n\\neffective May 1, 1996.\\n\\n The wells operating under the CA\\n\\n There are four wells associated with the CA and arising from the underlying\\n\\nleases, all of which are operated by Maralex. The four wells are physically situated\\n\\nin two areas on the O’Hares’ private surface estate in the O’Hare Tract. Each such\\n\\narea is enclosed by a fence and a locked gate. All four of the wells are producing\\n\\n“both fee and Tribal minerals” from the Fruitland coal formation. Id. at 32.\\n\\nAlthough the oil and gas at issue is produced from private mineral interests and from\\n\\nwells situated on private surface estates, such production is, under the terms of the\\n\\nCA, allocated to all of the oil and gas interests, including that of the Tribe, as the\\n\\nowner of record title to the mineral estate in the Tribe’s Section of the Parcel.\\n\\n BLM’s attempt to inspect the wells\\n\\n On February 11, 2013, Gabriel Trujillo, a Petroleum Engineering Technician\\n\\nemployed by the BLM, sent an email to Maralex stating that he planned to inspect the\\n\\nfour wells. On February 12, 2013, Christi Reid, a Maralex employee, responded by\\n\\n 5\\n\\femail, noted that the wells were situated “on Mickey O’Hare’s property,” and stated\\n\\nthat she envisioned “problems with him granting access” to Trujillo. Id. at 18. One\\n\\nday later, on February 13, 2013, Reid emailed Trujillo again, stating: “I talked to\\n\\nMickey O’Hare and let him know that you want to inspect the . . . wells. He wants to\\n\\ntalk to you directly . . . .” Id.\\n\\n On February 22, 2013, Trujillo drove to the Parcel in an attempt to examine\\n\\nthe wells. Upon arrival, Trujillo found that there was a locked gate that prevented\\n\\nhim from examining the wells. That same day, Trujillo spoke by phone with Mickey\\n\\nO’Hare. O’Hare informed Trujillo that he had no right to inspect the wells because\\n\\nO’Hare owned both the surface and mineral rights.\\n\\n BLM’s issuance of INCs to Maralex\\n\\n On February 26, 2013, Trujillo completed four official BLM forms entitled\\n\\n“Notice of Incidents of Noncompliance” (INC). Id. at 23. The INCs noted that\\n\\nTrujillo had attempted unsuccessfully to access the wells on February 22, 2013. The\\n\\nINCs, which were sent to Maralex, alleged that Maralex was in violation of 43 C.F.R.\\n\\n§ 3162.1(b), and they gave Maralex until March 25, 2013, to provide Trujillo and the\\n\\nBLM with access to the wells. In the “Remarks” section of the INCs, Trujillo stated:\\n\\n“For corrective action, I will need a key to access the location or be able to put a\\n\\nBLM lock in with it.” Id. at 24.\\n\\n Maralex’s administrative appeal of the INCs\\n\\n On March 27, 2013, a law firm representing Maralex and the O’Hares sent a\\n\\nletter to BLM appealing the four INCs. The letter asserted that the BLM had\\n\\n 6\\n\\fmisinterpreted its authority to inspect oil and gas wells located on private land. More\\n\\nspecifically, the letter asserted that the BLM “ha[d] limited authority to inspect\\n\\nfacilities on Fee Tracts” and that the applicable regulations “only allow[ed] annual\\n\\ninspections” of such wells. Id. at 33. The letter also asserted that “there [wa]s no\\n\\nstatutory authority nor . . . any legitimate justification for giving the BLM unbridled\\n\\ndiscretion to search the facilities at issue in order to ensure that there [wa]s adequate\\n\\nsite security measurement and that Maralex [wa]s properly measuring the production\\n\\nand operation of the wells.” Id. “Thus,” the letter asserted, “BLM’s request for a\\n\\nkey to any gates to conduct inspections [wa]s violative of Maralex’s constitutionally\\n\\nguaranteed protection against unreasonable searches under the Fourth Amendment.”\\n\\nId. Lastly, the letter asserted that “there [wa]s no legal authority for the BLM’s\\n\\ndemand for unfettered access to the O’Hare’s surface.” Id. And the letter argued that\\n\\n“[i]f the BLM was entitled to unfettered right to access O’Hare’s property under\\n\\nSection 3162.1(b), it would constitute a regulatory taking of O’Hare’s property in\\n\\nviolation of O’Hare’s property rights as guarantee [sic] by the takings clause of the\\n\\nFifth Amendment.” Id. at 34.\\n\\n On April 10, 2013, the BLM notified Maralex’s counsel that it was treating the\\n\\nMarch 27, 2013 letter “as a request for State Director’s review (SDR) . . . under 43\\n\\nCFR 3165.3.” Id. at 88.\\n\\n On July 9, 2013, the BLM’s Deputy State Director, Energy, Lands, and\\n\\nMinerals, Colorado State Office, sent a letter to Maralex’s counsel responding to\\n\\neach point raised by Maralex’s counsel. The letter disagreed that the applicable\\n\\n 7\\n\\fregulations allowed only for “annual inspections for fee tracts in a CA.” Id. at 90.\\n\\nRather, the letter asserted, the “inspected annually” language in the regulation merely\\n\\nestablished a minimum standard as to what was to be accomplished. Id. As for its\\n\\nauthority to conduct inspections of the wells, the BLM noted that\\n\\n Section 101(b) of the Federal Oil and Gas Royalty Management Act of\\n 1982 (FOGRMA) provides that, “Authorized and properly identified\\n representatives of the Secretary may without advance notice, enter\\n upon, travel across and inspect lease sites on Federal or Indian lands\\n and may obtain from the operator immediate access to secured facilities\\n on such lease sites, for the purpose of making any inspection or\\n investigation for determining whether there is compliance with the\\n requirements of the minearal [sic] leasing laws and this Act.”\\n\\nId. at 90-91 (italics in original). The BLM in turn stated that “[s]ince the subject\\n\\nwells’ production is subject to a federal CA and the government receives a portion of\\n\\nthe production’s royalty, the BLM is responsible for assuring production\\n\\naccountability” and that “[t]his includes inspections for site security, proper handling,\\n\\nmeasurement and reporting of production and protection against product theft.” Id. at\\n\\n91. “Therefore,” the letter stated, “BLM must be allowed to perform the production\\n\\nrelated inspection which necessitates physical access to the subject wells and their\\n\\nassociated facilities without advance notice.” Id. In a section entitled “Decision,”\\n\\nthe letter stated:\\n\\n Upon review, the four INCs covering denied access to the subject\\n wells were properly issued and are upheld. The stay of enforcement\\n action granted in our April 10, 2013, letter to Maralex is hereby lifted.\\n\\n Maralex must provide the BLM Tres Rios Field Office access\\n without advance notice as required by the INCs and the regulations. If\\n Maralex chooses not to provide access as required, Maralex will be\\n subject to assessments pursuant to 43 CFR 3163.1. In addition further\\n\\n 8\\n\\f non-compliance shall result in proposed civil penalties pursuant to 43\\n CFR 3163.2(e)(1).\\n\\nId. at 93.\\n\\n On August 20, 2013, Maralex’s counsel sent the BLM a notice of appeal of the\\n\\nJuly 9, 2013 decision. Id. at 97. Maralex’s counsel followed that up by filing with\\n\\nthe IBLA a Statement of Reasons for Appeal. Id. at 98. The Statement of Reasons\\n\\nargued that the regulation relied on by the BLM, 43 C.F.R. § 3162.1(b), applies only\\n\\n“to Federal and Indian lease sites,” and that “there is no statutory authority to support\\n\\nthe BLM’s suggestion that it has the right to conduct warrantless searches of\\n\\nMaralex’s facilities.” Id. at 113. “Thus,” the Statement of Reasons asserted, “BLM’s\\n\\nrequest violates Maralex’s right not to be subject to unreasonable searches as\\n\\nguaranteed by the Fourth Amendment.” Id. Lastly, the Statement of Reasons\\n\\nasserted that “if the BLM does have the statutory and regulatory authority to access\\n\\nthe O’Hare’s Fee Tract at any time, such authority would constitute a regulatory\\n\\ntaking of the O’Hare’s property in violation of their due process rights under the\\n\\nFifth Amendment.” Id.\\n\\n On July 10, 2015, the IBLA issued a written decision affirming the BLM’s\\n\\nJuly 9, 2013 decision. In doing so, the IBLA did not address whether plaintiffs were\\n\\nrequired to provide the BLM with a key or allow the BLM to install its own locks on\\n\\nMaralex’s gates, nor did the IBLA address plaintiffs’ constitutional arguments.\\n\\n The district court proceedings\\n\\n\\n\\n\\n 9\\n\\f On September 1, 2015, Maralex and the O’Hares initiated these proceedings\\n\\nby filing a complaint in federal district court against the Secretary, the Department of\\n\\nthe Interior, and the United States. The complaint sought reversal of the IBLA’s\\n\\ndecision, as well as declaratory relief.\\n\\n On October 19, 2017, the district court issued an order affirming the IBLA’s\\n\\ndetermination. Plaintiffs now appeal.\\n\\n II\\n\\n Plaintiffs raise two issues on appeal: (1) whether they waived their argument\\n\\nthat the BLM lacked authority to require them to provide the BLM with keys to the\\n\\nlocked gates on the O’Hares’ private property or, alternatively, to allow the BLM to\\n\\nplace its own locks on those gates; and (2) whether the BLM has statutory or\\n\\nregulatory authority to require plaintiffs to provide the BLM with keys to locked\\n\\ngates on privately-owned lands or, alternatively, to allow the BLM to place its own\\n\\nlocks on such gates.2 As discussed in more detail below, whether plaintiffs waived\\n\\ntheir argument is a close question, but assuming they did, we nevertheless exercise\\n\\ndiscretion to address the underlying issue. We in turn conclude that BLM lacked\\n\\nauthority to impose the “key or lock” requirement.\\n\\n Did plaintiffs waive their argument that the BLM lacked authority\\n to require them to provide keys to their locked gates or to allow the\\n BLM to place its own locks on those gates?\\n\\n\\n 2\\n Until recently, plaintiffs asserted three additional issues on appeal, including\\nFourth and Fifth Amendment challenges to the inspection protocol advocated by the\\nBLM. At oral argument, however, plaintiffs abandoned those issues. Consequently,\\nwe do not address them.\\n 10\\n\\f As noted, plaintiffs first argue that the district court erred in concluding that\\n\\nthey waived their argument that the BLM lacked authority to require them to provide\\n\\nthe BLM with keys to locked gates or to allow the BLM to place its own locks on\\n\\nthose gates. The district court concluded that plaintiffs “did not present to the IBLA\\n\\nthis particular argument that the BLM’s corrective action exceeded its authority.”\\n\\nAplt. App. at 207-08. The district court in turn concluded “that Plaintiffs waived this\\n\\nargument for purposes of this appeal and [it] decline[d] to consider it.” Id. at 208.\\n\\n To resolve this issue, we begin by turning to the record. Plaintiffs, in their\\n\\ninitial appeal of the INCs, “claim[ed] that BLM ha[d] no statutory authority or\\n\\nlegitimate justification giving the BLM unbridled discretion to search the subject\\n\\nwell facilities in order to ensure site security and proper measurement” and that,\\n\\nconsequently, “the BLM’s request for a key to any gates to conduct inspections [wa]s\\n\\nin violation of Maralex’s constitutionally guaranteed protection against unreasonable\\n\\nsearches under the Fourth Amendment.” Aplt. App. at 90.\\n\\n In their appeal to the IBLA from the State Director’s decision denying their\\n\\ninitial appeal, plaintiffs argued, in pertinent part, that “there [wa]s no statutory\\n\\nauthority nor . . . any legitimate justification for giving the BLM unbridled discretion\\n\\nto search the facilities at issue at any time and without notice,” and that,\\n\\nconsequently, “BLM’s request for a key to any gates to conduct unannounced\\n\\ninspections [wa]s violative of Maralex’s constitutionally guaranteed protection\\n\\nagainst unreasonable searches under the Fourth Amendment.” Id. at 102. Plaintiffs\\n\\nfurther argued that “there [wa]s no statutory support for warrantless, unannounced\\n\\n 11\\n\\finspections of [the] Fee Tracts,” and thus the BLM could not “rely on” its own\\n\\nregulations “for conducting unannounced, warrantless searches of the sites at issue.”\\n\\nId. at 107–08. Plaintiffs also argued that “Paragraph 13” of the CA “does not provide\\n\\nthe BLM with the unlimited right to conduct inspections without advance notice nor\\n\\ndoes it form the basis for giving the BLM a key to have unlimited physical access to\\n\\nthe wells and related facilities on Fee Tracts, which is applicable only to Federal and\\n\\nIndian lease sites.” Id. at 112. Lastly, the plaintiffs challenged the State Director’s\\n\\nrejection of “the O’Hare’s [sic] assertion that forcing them to supply the BLM with a\\n\\nkey to a lock to allow the BLM to have physical access to their surface property for\\n\\nunannounced inspections of Maralex’s wells and related facilities located on the\\n\\nO’Hare’s [sic] surface constitute[d] an unauthorized takings under the Fifth\\n\\nAmendment.” Id. at 112-13.\\n\\n In our view, it is a close question whether plaintiffs presented their argument\\n\\nto the IBLA that BLM exceeded its statutory and regulatory authority by requiring a\\n\\nkey or lock in the INCs. On the one hand, plaintiffs clearly argued, as part of their\\n\\nFourth Amendment challenge, that the BLM lacked both statutory and regulatory\\n\\nauthority to impose the key/lock requirement. On the other hand, plaintiffs expressly\\n\\nasserted before the IBLA that it lacked authority to address their Fourth Amendment\\n\\nchallenge and they asked the IBLA not to consider it.\\n\\n Even assuming, however, that plaintiffs failed to properly present to the IBLA\\n\\ntheir argument that the key/lock requirement exceeded the BLM’s statutory and\\n\\nregulatory authority, we nevertheless choose to exercise our discretion to address that\\n\\n 12\\n\\fissue.3 See U.S. Nat’l Bank of Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S.\\n\\n439, 447–48 (1993) (discussing authority of appellate court to address potentially\\n\\nwaived issue). We have held, albeit in a slightly different context, that we may\\n\\ndepart from general waiver principles “particularly when we are presented with a\\n\\nstrictly legal question, the proper resolution of which is beyond doubt or when\\n\\nmanifest injustice would otherwise result.” Daigle v. Shell Oil Co., 972 F.2d 1527,\\n\\n1539 (10th Cir. 1992). Further, in considering whether to address an alternative\\n\\ntheory, we take into account (1) “whether the ground was fully briefed and argued\\n\\nhere and below,” (2) “whether the parties have had a fair opportunity to develop the\\n\\nfactual record,” and (3) “whether, in light of factual findings to which we defer or\\n\\nuncontested facts, our decision would involve only questions of law.” Elkins v.\\n\\nComfort, 392 F.3d 1159, 1162 (10th Cir. 2004) (citations omitted).\\n\\n In this case, the issue of the BLM’s statutory and regulatory authority has been\\n\\nfully briefed and argued in this court by both sides. Further, the factual record is\\n\\nessentially undisputed and, thus, we are presented with only a question of law.\\n\\nLastly, and perhaps most importantly, the BLM has indicated its intention to enforce\\n\\nthe key/lock requirement at the conclusion of this litigation. On October 22, 2018,\\n\\n\\n 3\\n We are not aware of, nor has the BLM cited to, any authority holding that\\npreservation of the issue before the IBLA is a jurisdictional prerequisite. See Air\\nCourier Conference of Am. v. Am. Postal Workers Union AFL-CIO, 498 U.S. 517,\\n523 n.3 (1991) (“The judicial review provisions of the APA are not jurisdictional . . .\\n.”); Chissoe v. Zinke, 725 F. App’x 614, 621 (10th Cir. 2018) (stating that “judicial\\nexhaustion requirements under the APA are prudential only.”); Vietnam Veterans of\\nAm. v. Shinseki, 599 F.3d 654, 661 (D.C. Cir. 2010) (“We think the proposition that\\nthe review provisions of the APA are not jurisdictional is now firmly established.”).\\n 13\\n\\fwe issued an order to show cause directing the parties to address, in pertinent part,\\n\\nthe question of whether the BLM was continuing to require Maralex to provide the\\n\\nBLM with a key to the lock on the O’Hares’ gate or to allow the BLM to place its\\n\\nown lock on the gate. On December 18, 2018, defendants responded that, indeed,\\n\\n“BLM continues to require Maralex to either provide the agency with a key to the\\n\\nlock on the O’Hares’ gate or allow BLM to place its own lock on the gate.” Aple.\\n\\nResp. to Order to Show Cause at 2. Defendants asserted that, “[i]n the absence of\\n\\ncompliance with the [key/lock requirement] in the INCs, Mr. O’Hare may refuse\\n\\nBLM access to the wells at any time, as he did in February 2013 (which led to BLM’s\\n\\nissuance of the INCs).” Id. at 3. Thus, despite the fact that the INCs were issued\\n\\nnearly six years ago, it is clear that the BLM intends to enforce the key/lock\\n\\nrequirement once this litigation ends. For this reason, we conclude that the interests\\n\\nof justice are best served if we address the merits of plaintiffs’ argument that BLM\\n\\nlacks statutory and regulatory authority to impose the key/lock requirement.\\n\\n Does the BLM have authority to require a landowner or operator\\n to provide the BLM with keys to the landowner’s locked gates or allow\\n the BLM to place its own locks on the landowner’s gates?\\n\\n We now turn to the merits of plaintiffs’ argument. Plaintiffs assert that, even\\n\\nassuming some statutory or regulatory authority exists for the BLM to conduct\\n\\ninspections on fee lands without advanced notice, “there are limits to such\\n\\ninspections.” Aplt. Br. at 40. Plaintiffs point to the language of 30 U.S.C. § 1718 to\\n\\nsupport their position. Section 1718, plaintiffs note, “limits the right to enter upon,\\n\\ntravel across and inspect lease sites to not only ‘authorized’ representatives of the\\n\\n 14\\n\\fSecretary, but to representatives that are ‘properly identified.’” Id. And, plaintiffs\\n\\nargue, “[b]ecause the landowner and the operator have the right to ensure that the\\n\\nrepresentative is properly identified, the BLM cannot force either the landowner or\\n\\nthe operator to provide a key to the landowner’s locked gates or be forced to allow\\n\\nthe BLM to place a lock on the landowner’s locked gates since by doing so neither\\n\\nthe landowner nor operator will be able to check the identification of the person(s)\\n\\nentering upon, travelling across, and/or inspecting the facilities.” Id. at 40-41.\\n\\nLastly, plaintiffs argue that “[a]ll that is required of the operator under Section\\n\\n1718(b) is to provide ‘immediate access to secured facilities’ to a properly identified\\n\\nrepresentative of the Secretary.” Id. at 41. This means, plaintiffs argue, that “if the\\n\\noperator is on site at the time of the inspection, it is required to open any gates or\\n\\notherwise secured facilities” and “[i]f the operator is not on the lease site when the\\n\\nauthorized, properly identified representative arrives at the lease site, then the\\n\\noperator is required to go to the lease site and provide immediate access.” Id.\\n\\n Defendants argue, in response, that “the INCs’ corrective action requiring\\n\\nPlaintiffs to provide BLM with key or lock access is permissible under the statute and\\n\\nthe regulations.” Aple. Br. at 39. In particular, defendants assert that “FOGRMA\\n\\nand its implementing regulations provide that any person who fails to allow\\n\\nauthorized inspections is liable for penalties, which may not be applied if the liable\\n\\nperson takes the prescribed corrective action within the required timeframe.” Id.\\n\\n a) Standard of review\\n\\n\\n\\n 15\\n\\f Although this is an appeal from the district court’s decision, we accord no\\n\\nparticular deference to that decision. Instead, we conduct our own independent\\n\\nreview of the agency’s decision. Exxon Mobil Oil Corp. v. Norton, 346 F.3d 1244,\\n\\n1248 (10th Cir. 2003). Under the Administrative Procedures Act, we will “set aside\\n\\nagency’s action if it is arbitrary, capricious, an abuse of discretion, or otherwise not\\n\\nin accordance with law.” Utah Envtl. Cong. v. Bosworth, 439 F.3d 1184, 1188 (10th\\n\\nCir. 2006) (internal quotations omitted); see 5 U.S.C. § 706(2)(A).\\n\\n When reviewing an agency’s interpretation of a statute it administers, we first\\n\\ndetermine whether Congress has directly spoken to the precise issue. See Chevron,\\n\\nU.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984); Cliffs Synfuel\\n\\nCorp. v. Norton, 291 F.3d 1250, 1257 (10th Cir. 2002). “If the intent of Congress is\\n\\nclear, that is the end of the matter; for the court . . . must give effect to the\\n\\nunambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842–43. If,\\n\\nhowever, the statute is silent or ambiguous on the issue in question, we do not impose\\n\\nour own construction on the statute, but rather ascertain whether the agency’s\\n\\ninterpretation is a permissible construction of the statute. Id. at 843. If it is, we defer\\n\\nto that interpretation. Id. at 844. Our review of federal regulations is similar. “In the\\n\\nusual course, when an agency is authorized by Congress to issue regulations and\\n\\npromulgates a regulation interpreting a statute it enforces, the interpretation receives\\n\\ndeference if the statute is ambiguous and if the agency’s interpretation is reasonable.”\\n\\nEncino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2124 (2016). “This principle is\\n\\nimplemented by the two-step analysis set forth in Chevron.” Id. “At the first step, a\\n\\n 16\\n\\fcourt must determine whether Congress has ‘directly spoken to the precise question\\n\\nat issue.” Encino, 136 S. Ct. at 2124 (quoting Chevron, 467 U.S. at 842). “If the\\n\\nintent of Congress is clear, that is the end of the matter; for the court, as well as the\\n\\nagency, must give effect to the unambiguously expressed intent of Congress.”4\\n\\nChevron, 467 U.S. at 842-43. “If not, then at the second step the court must defer to\\n\\nthe agency’s interpretation if it is ‘reasonable.’” Encino, 136 S. Ct. at 2125 (quoting\\n\\nChevron, 467 U.S. at 844). “It is well established that an agency’s interpretation\\n\\nneed not be the only possible reading of a regulation—or even the best one—to\\n\\nprevail.” Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 613 (2013). “When an\\n\\nagency interprets its own regulation, the Court, as a general rule, defers to it unless\\n\\nthat interpretation is plainly erroneous or inconsistent with the regulation.” Id.\\n\\n(quotation marks omitted).\\n\\n b) Analysis\\n\\n We begin our analysis by briefly examining the overall statutory and\\n\\nregulatory scheme for inspections of oil and gas lease sites that implicate Indian\\n\\n\\n\\n\\n 4\\n At the first step of the Chevron analysis, “we must giv[e] all undefined terms\\ntheir ordinary meaning.’” Nat’l Credit Union Admin. Bd. v. Nomura Home Equity\\nLoan, Inc., 764 F.3d 1199, 1227 (10th Cir. 2014) (quoting Fed. Hous. Fin. Agency v.\\nUBS Americas Inc., 712 F.3d 136, 141 (2d Cir. 2013)). “We may consult a\\ndictionary to determine the plain meaning of a term” and may “also take into account\\nthe broader context of the statute as a whole when ascertaining the meaning of a\\nparticular provision.” Conrad v. Phone Directories Co., 585 F.3d 1376, 1381 (10th\\nCir. 2009) (quotation marks and citation omitted).\\n 17\\n\\fmineral interests. In § 1702 of FOGRMA, Congress set forth the following\\n\\ndefinitions that are relevant to understanding the substantive provisions of the Act:\\n\\n (1) “Federal land” means all land and interests in land owned by the\\n United States which are subject to the mineral leasing laws, including\\n mineral resources or mineral estates reserved to the United States in the\\n conveyance of a surface or nonmineral estate;\\n ···\\n (3) “Indian lands” means any lands or interest in lands of an Indian tribe\\n or an Indian allottee held in trust by the United States or which is\\n subject to Federal restriction against alienation or which is administered\\n by the United States pursuant to section 14(g) of Public Law 92-203 [43\\n USC § 1613(g)], as amended, including mineral resources and mineral\\n estates reserved to an Indian tribe or an Indian allottee in the\\n conveyance of a surface or nonmineral estate, except that such term\\n does not include any lands subject to the provisions of section 3 of the\\n Act of June 28, 1906 (34 Stat. 539) [unclassified];\\n ···\\n (5) “lease” means any contract, profit-share arrangement, joint venture,\\n or other agreement issued or approved by the United States under a\\n mineral leasing law that authorizes exploration for, extraction of, or\\n removal of oil or gas;\\n (6) “lease site” means any lands or submerged lands, including the\\n surface of a severed mineral estate, on which exploration for, or\\n extraction or removal of, oil or gas is authorized pursuant to a lease;\\n ···\\n\\n30 U.S.C. § 1702(1), (3), (5), (6).\\n\\n In our view, the plain language of the statutory definition of “lease” includes\\n\\ncommunitization agreements approved by the United States, such as the one at issue\\n\\nin this case. More specifically, a communitization agreement is a “contract” or\\n\\n“other agreement” that, depending upon the circumstances, has been “approved by\\n\\nthe United States under a mineral leasing law,” i.e., federal law governing mineral\\n\\nrights on Indian and trust land, “that authorizes exploration for, extraction of, or\\n\\n\\n\\n 18\\n\\fremoval of oil or gas.”5 Thus, the statutory definition of “lease site” necessarily\\n\\nincludes any lands, including privately-owned lands, on which exploration for and\\n\\nextraction of oil and gas is occurring pursuant to a communitization agreement.\\n\\n Section 1718 of FOGRMA, entitled “Inspection,” provides in pertinent part as\\n\\nfollows:\\n\\n (b) Inspection of lease sites for compliance with mineral leasing laws\\n and 30 USCS §§ 1701 et seq. Authorized and properly identified\\n representatives of the Secretary may without advance notice, enter upon,\\n travel across and inspect lease sites on Federal or Indian lands and may\\n obtain from the operator immediate access to secured facilities on such\\n lease sites, for the purpose of making any inspection or investigation for\\n determining whether there is compliance with the requirements of the\\n mineral leasing laws and this Act. The Secretary shall develop\\n guidelines setting forth the coverage and the frequency of such\\n inspections.\\n\\n30 U.S.C. §1718(b). Although § 1718(b) incorporates the statutory phrase “lease\\n\\nsites,” it proceeds to limit the scope of that phrase by authorizing BLM\\n\\nrepresentatives to, “without advance notice, enter upon, travel across and inspect”\\n\\nlease sites that exist “on Federal or Indian lands,” i.e., non-fee lands owned by the\\n\\nUnited States or held in trust by the United States for a tribe, and that arise out of\\n\\n\\n 5\\n Neither the IBLA nor the BLM have expressly adopted this broad definition\\nof “lease.” Instead, the IBLA interpreted the identically-worded regulatory definition\\nof the term “lease site” to include more than “Federal or Indian lease sites,” and also\\nconcluded that the identically-worded regulatory definition of the term “lease” was\\nnot incorporated into the regulatory phrase “lease site.” Aplt. App. at 170, 174. We\\nreject this latter conclusion as inconsistent with the statutory language and normal\\nrules of statutory construction. In particular, “it is a normal rule of statutory\\nconstruction that identical words used in different parts of the same act are intended\\nto have the same meaning,” and we see no evidence that Congress intended for the\\nterm “lease,” as used in the term “lease site,” to carry a different meaning. Pereira v.\\nSessions, 138 S. Ct. 2105, 2115 (2018).\\n 19\\n\\fcontracts or agreements issued or approved by the United States. Further, the statute\\n\\nis silent with respect to how, if at all, BLM representatives may access lease sites on\\n\\nprivately-owned lands.\\n\\n Defendants concede that “Congress did not expressly address the application\\n\\nof Section 1718(b) inspection authority to fee lands committed to communitization\\n\\nagreements.” Aple. Br. at 15. But, defendants argue, “[g]iven that ambiguity, BLM\\n\\nreasonably exercised its delegated rulemaking authority to include the inspection of\\n\\nfee lands that, like the O’Hares’, are subject to a communitization agreement that was\\n\\napproved by the Department and involves Indian lands where the affected tribe shares\\n\\nin the production and royalties of the oil and gas operation.” Id.\\n\\n Defendants’ arguments hinge on the threshold question of whether § 1718(b) is\\n\\nambiguous or not. A statute is “ambiguous if it is reasonably susceptible to more\\n\\nthan one interpretation or capable of being understood in two or more possible senses\\n\\nor ways.” Nat’l Credit Union Admin. Bd. v. Nomura Home Equity Loan, Inc., 764\\n\\nF.3d 1199, 1226 (10th Cir. 2014) (quotations and citations omitted); see Chickasaw\\n\\nNation v. United States, 534 U.S. 84, 90 (2001). Although it may be reasonable from\\n\\na policy standpoint for the BLM to have authority to inspect fee lands that are subject\\n\\nto a communitization agreement approved by the United States, § 1718(b) simply is\\n\\nnot ambiguous and thus does not provide the BLM with any authority to exercise its\\n\\ndelegated rulemaking authority on that issue. As noted, § 1718(b) quite clearly limits\\n\\nthe BLM’s inspection authority to lease sites on federal and Indian lands.\\n\\n\\n\\n 20\\n\\f To be sure, § 1718(b) is silent with respect to inspections of lease sites on fee\\n\\nlands, but that silence does not render the statute ambiguous. See Spring Creek Expl.\\n\\n& Prod. Co. v. Hess Bakken Inv., II, LLC, 887 F.3d 1003, 1018 (10th Cir. 2018)\\n\\n(“silence is not ambiguity”). When the Supreme Court has discussed the exercise of\\n\\nagency discretion “‘in the interstices created by statutory silence,’” it has done so\\n\\nonly when “considering undefined terms in a statute or statutory directive to perform\\n\\na specific task without giving detailed instructions.” Marlow v. New Food Guy, Inc.,\\n\\n861 F.3d 1157, 1162 (10th Cir. 2017) (quoting Util. Air Regulatory Grp. v. EPA, 134\\n\\nS. Ct. 2427, 2445 (2014) (internal quotation marks omitted)). And that is simply not\\n\\nthe case with § 1718(b). As noted, § 1718(b) plainly focuses on lease sites “on\\n\\nFederal or Indian lands” and does not otherwise leave any terms or statutory\\n\\ndirectives undefined.\\n\\n For these reasons then, we conclude that § 1718(b) does not afford the BLM\\n\\nwith authority to inspect lease sites on privately-owned lands. Thus, we must look\\n\\nelsewhere to determine whether any authority exists for the BLM’s proposed\\n\\ninspections of the wells in this case.\\n\\n The Secretary has issued regulations implementing the various statutory\\n\\ndirectives outlined by Congress in FOGRMA. To begin with, 43 C.F.R. § 3161.1(b)\\n\\nstates:\\n\\n The regulations in this part and 43 CFR part 3170, including subparts\\n 3173, 3174, and 3175, relating to site security, measurement of oil and\\n gas, reporting of production and operations, and assessments or\\n penalties for non-compliance with such requirements, are applicable to\\n all wells and facilities on State or privately owned lands committed to a\\n\\n 21\\n\\f unit or communitization agreement, which include Federal or Indian\\n lease interests, notwithstanding any provision of a unit or\\n communitization agreement to the contrary.\\n\\n43 C.F.R. § 3161.1(b) (emphasis added).\\n\\n In turn, 43 C.F.R. § 3161.3, entitled “Inspections,” states:\\n\\n (a) The authorized officer shall establish procedures to ensure that each\\n Federal and Indian lease site which is producing or is expected to\\n produce significant quantities of oil or gas in any year or which has a\\n history of noncompliance with applicable provisions of law or\\n regulations, lease terms, orders or directives shall be inspected at least\\n once annually. Similarly, each lease site on non-Federal or non-Indian\\n lands subject to a formal agreement such as a unit or communitization\\n agreement which has been approved by the Department of the Interior\\n and in which the United States or the Indian lessors share in production\\n shall be inspected annually whenever any of the foregoing criteria are\\n applicable.\\n (b) In accomplishing the inspections, the authorized officer may utilize\\n Bureau personnel, may enter into cooperative agreements with States or\\n Indian Tribes, may delegate the inspection authority to any State, or\\n may contract with any non-Federal Government entities. Any\\n cooperative agreement, delegation or contractual arrangement shall not\\n be effective without concurrence of the Secretary and shall include\\n applicable provisions of the Federal Oil and Gas Royalty Management\\n Act.\\n\\n43 C.F.R. § 3163.3(a) and (b).6\\n\\n Lastly, 43 C.F.R. § 3162.1, which discusses “General requirements” for\\n\\noperating rights owners and operators, states:\\n\\n (a) The operating rights owner or operator, as appropriate, shall comply\\n with applicable laws and regulations; with the lease terms, Onshore Oil\\n\\n 6\\n The Secretary’s authority to enact the portion of this regulation concerning\\ninspections on privately-owned lands arises both from the general purposes\\nprovisions of FOGRMA, § 1701(b)(3)-(5), as well as § 1711(a) and (b). Section\\n1711(a) directs the Secretary, in part, to “establish a comprehensive inspection . . .\\nsystem,” and §1711(b) directs the Secretary to conduct annual inspections of certain\\nlease sites, without limitation to sites contained on Federal or Indian lands.\\n 22\\n\\f and Gas Orders, NTL’s; and with other orders and instructions of the\\n authorized officer. These include, but are not limited to, conducting all\\n operations in a manner which ensures the proper handling,\\n measurement, disposition, and site security of leasehold production;\\n which protects other natural resources and environmental quality; which\\n protects life and property; and which results in maximum ultimate\\n economic recovery of oil and gas with minimum waste and with\\n minimum adverse effect on ultimate recovery of other mineral\\n resources.\\n\\n (b) The operator shall permit properly identified authorized\\n representatives to enter upon, travel across and inspect lease sites and\\n records normally kept on the lease pertinent thereto without advance\\n notice. Inspections normally will be conducted during those hours when\\n responsible persons are expected to be present at the operation being\\n inspected. Such permission shall include access to secured facilities on\\n such lease sites for the purpose of making any inspection or\\n investigation for determining whether there is compliance with the\\n mineral leasing laws, the regulations in this part, and any applicable\\n orders, notices or directives.\\n\\n (c) For the purpose of making any inspection or investigation, the\\n Secretary or his authorized representative shall have the same right to\\n enter upon or travel across any lease site as the operator has acquired\\n by purchase, condemnation or otherwise.\\n\\n43 C.F.R. § 3162.1 (emphasis added).7\\n\\n The regulatory provisions thus provide for an inspection framework that\\n\\napplies to federal, Indian, and certain privately-owned lands, but that, not\\n\\nsurprisingly, provides the BLM with greater inspection authority over federal and\\n\\nIndian lands than privately-owned lands. With respect to lease sites on federal and\\n\\nIndian land that are “producing or . . . expected to produce significant quantities of\\n\\noil or gas in a year or which ha[ve] a history of noncompliance with applicable\\n\\n\\n 7\\n It was this regulation that Maralex was cited for violating in the four INCs.\\nAplt. App. at 168.\\n 23\\n\\fprovisions of law or regulations,” BLM representatives must inspect such lease sites\\n\\n“at least once annually.” 43 C.F.R. § 3161.3(a). As for lease sites on privately-\\n\\nowned lands that are committed to a unit or communitization agreement that has been\\n\\napproved by the Department of the Interior, they are required to “be inspected\\n\\nannually whenever” they are “producing or . . . expected to produce significant\\n\\nquantities of oil or gas in any year or” if they “ha[ve] a history of noncompliance\\n\\nwith applicable provisions of law or regulations.”8 43 C.F.R. § 3161.3(a). They can\\n\\nalso be inspected by the BLM for purposes of assessing “site security, measurement,\\n\\nreporting of production and operations, and assessments or penalties for\\n\\nnoncompliance with such requirements.” 43 C.F.R. § 3161.2. Further, the operating\\n\\nrights owner or operator of any such lease site on privately-owned land is required to\\n\\n“permit properly identified authorized representatives” of the BLM “to enter upon,\\n\\ntravel across and inspect lease sites and records normally kept on the lease pertinent\\n\\nthereto without advance notice.” 43 C.F.R. § 3162.1(b). Any such inspections,\\n\\nhowever, must normally “be conducted during those hours when responsible persons\\n\\nare expected to be present at the operation being inspected.” Id. In addition, “[s]uch\\n\\npermission” by the operating rights owner or operator “shall include access to\\n\\nsecured facilities on such lease sites for the purpose of making any inspection or\\n\\ninvestigation for determining whether there is compliance with the mineral leasing\\n\\n\\n\\n 8\\n In this case, the IBLA expressly found that the wells at issue “are producing\\nor expected to produce significant quantities of oil and gas,” thus rendering the wells\\nsubject to annual inspection under § 3163.3(a). Aplt. App. at 172.\\n 24\\n\\flaws, the regulations . . . , and any applicable orders, notices or directives.” Id.\\n\\nLastly, BLM representatives are, “for the purpose of making any inspection or\\n\\ninvestigation,” afforded the same right of entry to and travel access across the lease\\n\\nsite “as the operator has acquired by purchase, condemnation or otherwise.” Id. §\\n\\n3162.1(c).\\n\\n Thus, at least for purposes of this case, the key difference between lease sites\\n\\non federal/Indian lands and lease sites on privately-owned land subject to a\\n\\ncommunitization agreement is how BLM representatives may access them. For lease\\n\\nsites on federal/Indian lands, BLM representatives have the right to enter those sites\\n\\nby themselves without first seeking permission from the operating rights owner or\\n\\noperator. In contrast, for lease sites on privately-owned lands, BLM representatives\\n\\nmay not independently enter the sites, but instead must seek entry (but do not have to\\n\\ngive advance notice) from the operating rights owner or operator and the operating\\n\\nrights owner or operator, as noted, is obligated to allow such entry.\\n\\n As for how often BLM representatives may inspect the wells, the regulations\\n\\ncontain no limitation. Indeed, the only reference to frequency of inspections is\\n\\ncontained in § 3161.3(a), which, as noted, requires lease sites meeting certain\\n\\nrequirements to be inspected at least once annually. Section 3161.3(a) does not,\\n\\nhowever, impose any upper limit on the number of inspections. In other words, as\\n\\nboth the State Director and the IBLA concluded in their respective decisions, “[t]he\\n\\n[regulatory] wording ‘inspected annually’ is a minimum standard not a maximum\\n\\nlimitation.” Aplt. App. at 90; see id. at 176 n.10 (IBLA decision).\\n\\n 25\\n\\f In sum, the BLM had authority to inspect the wells at issue. The question\\n\\nremains, however, whether BLM had authority to require Maralex to provide BLM\\n\\nwith “a key to access the location or” allow BLM to install its own locks. Aplt. App.\\n\\nat 24).\\n\\n We agree with plaintiffs that the BLM lacks authority to require an operator or\\n\\nlandowner to provide the BLM with a key to the landowner’s locked gates or to allow\\n\\nthe BLM to place its own locks on the landowner’s locked gates. But we arrive at\\n\\nthis conclusion in a different manner than suggested by plaintiffs. Although\\n\\nplaintiffs base many of their arguments on the language of § 1718(b), that statutory\\n\\nsubsection, as discussed above, does not apply at all to lease sites on privately-owned\\n\\nlands. Instead, the parameters of inspections of lease sites on privately-owned lands\\n\\nare outlined in two regulations: 30 C.F.R. §§ 3162.1 and 3163.3. Neither of those\\n\\nregulations provide any authority for the BLM to require an operating rights owner or\\n\\noperator (or, for that matter, a private landowner) to (a) provide BLM with a key to a\\n\\nlease site on privately-owned land, or (b) to install a BLM-lock on the gates to such\\n\\nlease site. Rather, as discussed above, the BLM has the right to conduct\\n\\nunannounced inspections of such sites, but must rely on the operating rights owner or\\n\\noperator to afford them entry to the lease site.\\n\\n Defendants, for their part, cite in their appellate brief to the statutory and\\n\\nregulatory provisions authorizing the BLM to take “corrective action.” Aple. Br. at\\n\\n39 (citing 30 U.S.C. §§ 1719(a)(2)(A), (a)(2)(B) and 43 C.F.R. § 3163.1(a)(4)).\\n\\nThose statutory provisions, however, speak only in terms of monetary “civil\\n\\n 26\\n\\fpenalties” (the amount of which depends upon how long the violation has gone on).\\n\\n30 U.S.C. §§ 1719(a)(2), (b). The regulatory provisions also mention the possibility\\n\\nof lease cancellations and criminal penalties. 43 C.F.R. §§ 3163.1(a)(5), 3163.3.\\n\\nNotably, nothing in the statutory and regulatory provisions mentions the remedy\\n\\nimposed on the plaintiffs in this case, i.e., requiring them to provide BLM with a key\\n\\nor to allow BLM to install its own locks. Although defendants concede this point,\\n\\nthey nevertheless argue that “it is reasonable to conclude that when a landowner\\n\\ndenies BLM entry, the very least that the agency can permissibly do under the statute\\n\\nis order any reasonable remedy that will yield the access required to carry out\\n\\nCongress’s charge.” Id. at 39-40. We reject that argument. Requiring the provision\\n\\nof a key or lock access is, without question, a drastic measure that would, at a\\n\\nminimum, require express congressional approval. Because no such approval\\n\\nappears in the relevant statutes or regulations, defendants’ arguments must be\\n\\nrejected.\\n\\n III\\n\\n We REVERSE and REMAND to the district court with directions to enter\\n\\njudgment in favor of plaintiffs on their claim that the BLM lacks authority to require\\n\\nplaintiffs to provide the BLM with a key to access the wells at issue or to allow BLM\\n\\nto install its own locks.\\n\\n\\n\\n\\n 27\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":385,"cells":{"id":{"kind":"number","value":4583373,"string":"4,583,373"},"name":{"kind":"string","value":"Lina THOUNG, Petitioner - Appellant, v. UNITED STATES of America, Respondent - Appellee."},"name_abbreviation":{"kind":"string","value":"Thoung v. United States"},"decision_date":{"kind":"string","value":"2019-01-22"},"docket_number":{"kind":"string","value":"17-3220"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Tymkovich, Holmes, Phillips\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9887889/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"040dissent\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9887890/\", \"author_raw\": \"\"}, {\"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n Tenth Circuit\\n\\n January 22, 2019\\n PUBLISH Elisabeth A. Shumaker\\n Clerk of Court\\n UNITED STATES COURT OF APPEALS\\n\\n TENTH CIRCUIT\\n\\n\\n\\n LINA THOUNG,\\n\\n Petitioner - Appellant,\\n v. No. 17-3220\\n UNITED STATES OF AMERICA,\\n\\n Respondent - Appellee.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF KANSAS\\n (D.C. NO. 5:17-CV-03032-EFM)\\n\\n\\nMatthew L. Hoppock, The Hoppock Law Firm, LLC, Overland Park, Kansas, for\\nPetitioner-Appellant.\\n\\nJared S. Maag, Assistant United States Attorney (Stephen R. McAllister, United\\nStates Attorney, District of Kansas, and James A. Brown, Assistant United States\\nAttorney, Chief, Appellant Division, with him on the briefs), Office of the United\\nStates Attorney, Topeka, Kansas, for Respondent-Appellee.\\n\\n\\nBefore TYMKOVICH, Chief Judge, HOLMES, and PHILLIPS, Circuit Judges.\\n\\n\\nTYMKOVICH, Chief Judge.\\n\\n\\n Lina Thoung illegally entered the United States in 2002. After the\\n\\ngovernment learned of her illegal status, she jointly stipulated to a removal order\\n\\fafter pleading guilty in district court to document fraud. But deportation\\n\\nproceedings never occurred. Five years later, she filed a writ of habeas corpus\\n\\nwith the district court alleging the court had lacked subject-matter jurisdiction to\\n\\nenter its order of removal. The district court reaffirmed its jurisdiction to order\\n\\nremoval and rejected Thoung’s habeas petition.\\n\\n We hold that, because of the REAL ID Act’s limitations on judicial review,\\n\\nthe district court lacked jurisdiction to entertain Thoung’s habeas petition\\n\\nchallenging the prior removal order.\\n\\n I. Background\\n\\n Thoung emigrated from Cambodia to the United States in 2002 using a\\n\\nfraudulently obtained visa in the name and birthdate of another person. In 2007,\\n\\nshe obtained U.S. citizenship and affirmed she had never provided false\\n\\ninformation to any government official while applying for any immigration\\n\\nbenefit.\\n\\n Her fraud was discovered in 2012. She subsequently pleaded guilty to\\n\\nmisusing a visa, permit, and other documents to obtain citizenship, in violation of\\n\\n18 U.S.C. § 1546(a). As part of her plea agreement, she jointly stipulated to\\n\\ndenaturalization under 8 U.S.C. § 1451(e) and removal from the United States.\\n\\nRelying on 8 U.S.C. § 1228(c)(5), the district court entered an order of removal.\\n\\nImmigration authorities, unable to deport Thoung back to Cambodia, eventually\\n\\n\\n\\n -2-\\n\\freleased her subject to an Order of Supervision. Under this order, Thoung could\\n\\nbe arrested and deported at any time.\\n\\n In 2017, Thoung filed a writ of habeas corpus—apparently under 28 U.S.C.\\n\\n§ 2241—alleging the district court had lacked subject-matter jurisdiction to enter\\n\\nthe judicial removal order requested under the plea agreement. Neither the\\n\\ngovernment nor the district court considered the potential applicability of the\\n\\nREAL ID Act, 8 U.S.C. § 1252, and the substantial limitations it imposes on\\n\\njudicial review. On the merits, the district court reaffirmed its jurisdiction to\\n\\nenter Thoung’s removal order. Thoung appealed the district court’s assertion of\\n\\nsubject-matter jurisdiction to enter the 2013 removal order.\\n\\n II. Analysis\\n\\n We first consider whether the district court had subject-matter jurisdiction\\n\\nto hear Thoung’s habeas petition, a question of statutory interpretation.\\n\\nGonzales-Alarcon v. Macias, 884 F.3d 1266, 1273 (10th Cir. 2018). We conclude\\n\\nthe REAL ID Act prevents the district court from exercising habeas jurisdiction to\\n\\nhear Thoung’s petition.\\n\\n A. The REAL ID Act’s Limitations on Judicial Review\\n\\n Generally, “[w]rits of habeas corpus may be granted by . . . the district\\n\\ncourts and any circuit judge within their respective jurisdictions.” 28 U.S.C.\\n\\n§ 2241(a). A person must be “in custody” to seek the habeas writ, id.\\n\\n\\n\\n -3-\\n\\f§ 2241(c)(1), and a person subject to removal is “in custody” for habeas purposes.\\n\\nSee Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir. 2001).\\n\\n Nevertheless, the REAL ID Act imposes substantial limitations on judicial\\n\\nreview, including habeas review, of final orders of removal. Removal orders may\\n\\nbe challenged only by way of a petition for review filed in the court of appeals.\\n\\nAccording to § 1252(a)(5), “petitions for review” filed with the courts of appeal\\n\\nare the “sole and exclusive means for judicial review from an order of removal.”\\n\\nAnd the statute specifically excludes “habeas corpus review pursuant to sections\\n\\n1241 . . . or any other habeas corpus provision.” Id. 1 That “sole and exclusive\\n\\nmeans for judicial review from an order of removal” is outlined in § 1252(b),\\n\\nwhich requires that a petition for review must be filed within thirty days of a final\\n\\norder of removal. Id. § 1252(b)(1). “That deadline is mandatory and\\n\\njurisdictional; it is not subject to equitable tolling.” Gonzales-Alarcon, 884 F.3d\\n\\n\\n 1\\n In full, section 1252(a)(5) provides:\\n\\n Notwithstanding any other provision of law (statutory or nonstatutory),\\n including section 2241 of Title 28, or any other habeas corpus provision,\\n and sections 1361 and 1651 of such title, a petition for review filed with an\\n appropriate court of appeals in accordance with this section shall be the\\n sole and exclusive means for judicial review from an order of removal\\n entered or issued under any provision of this chapter, except as provided in\\n subsection (e). For purposes of this chapter, in every provision that limits\\n or eliminates judicial review or jurisdiction to review, the terms “judicial\\n review” and “jurisdiction to review” include habeas corpus review pursuant\\n to section 2241 of Title 28, or any other habeas corpus provision, sections\\n 1361 and 1651 of such title, and review pursuant to any other provision of\\n law (statutory or nonstatutory).\\n\\n -4-\\n\\fat 1271. Thus, although the REAL ID Act permits “review of constitutional\\n\\nclaims or questions of law raised upon a petition for review,” 8 U.S.C.\\n\\n§ 1252(a)(2)(D), an individual petitioning for review cannot challenge a removal\\n\\norder once judicial review is time-barred, see Gonzales-Alarcon, 884 F.3d at\\n\\n1271. By the time Thoung filed her habeas petition with the district court, the\\n\\ndeadline for properly filing a petition for review in accordance with the REAL ID\\n\\nAct had long expired.\\n\\n In Gonzales-Alarcon, we emphasized that “Congress clearly intended to\\n\\nfunnel all challenges to removal through the petition for review process.” Id. at\\n\\n1278. We held that “[u]nder the plain language of [§ 1252(a)(5)], a habeas\\n\\nchallenge to an order of removal is barred regardless of whether the petitioner is\\n\\nan alien or claims citizenship.” Id. at 1274.\\n\\n Our circuit is consistent with others in recognizing the REAL ID Act’s\\n\\nlimitations on habeas review. See Andrade v. Gonzales, 459 F.3d 538, 542 (5th\\n\\nCir. 2006) (“The REAL ID Act divests the district courts of jurisdiction over the\\n\\nhabeas petitions of aliens; instead, REAL ID Act § 106 states that ‘a petition for\\n\\nreview shall be the sole and exclusive means for judicial review of an order of\\n\\nremoval entered or issued under any provision of [the Immigration and\\n\\nNationality Act].’”); Marquez-Almanzar v. INS, 418 F.3d 210, 215 (2d Cir. 2005)\\n\\n(REAL ID Act “unequivocally eliminates habeas corpus review of orders of\\n\\nremoval.”).\\n\\n -5-\\n\\f Because Thoung’s habeas petition ultimately seeks to invalidate the district\\n\\ncourt’s removal order, we conclude she is seeking “judicial review of an order of\\n\\nremoval” in a manner prohibited by § 1252(a)(5).\\n\\n B. The REAL ID Act Eliminates Jurisdiction to Entertain Thoung’s\\nHabeas Petition\\n\\n Nevertheless, Thoung raises three arguments to support her claim that the\\n\\ndistrict court had proper jurisdiction to entertain her habeas petition.\\n\\n All three ultimately fail.\\n\\n 1. Orders Arising from Criminal Proceedings\\n\\n First, Thoung contends Congress did not intend to bar habeas review of\\n\\njudicial removal orders because she claims the Act omits orders arising from\\n\\ncriminal proceedings that result in removability. The criminal offenses which are\\n\\ngrounds for removability are set forth in 8 U.S.C. § 1227(a)(2). She relies on INS\\n\\nv. St. Cyr, 533 U.S. 289 (2001), which held that AEDPA’s limitations on habeas\\n\\nreview did “not bar jurisdiction over removal orders not subject to judicial review\\n\\nunder § 1252(a)(1)—including orders against aliens who are removable by reason\\n\\nof having committed one or more criminal offenses.” Id. at 313.\\n\\n But Thoung’s interpretation misreads the REAL ID Act, which was adopted\\n\\nin 2005 to render the removal-challenge process consistent with St. Cyr. See 2\\n\\nRandy Hertz & James S. Liebman, Federal Habeas Corpus Practice and\\n\\nProcedure § 41.1, at 2208–15 (6th ed. 2011). The REAL ID Act expressly divests\\n\\n\\n -6-\\n\\fdistrict courts of jurisdiction over habeas challenges to removal orders, including\\n\\nthose arising from criminal offenses, and funnels all such challenges to the\\n\\n“appropriate court of appeals” as the “sole and exclusive means for judicial\\n\\nreview of an order of removal entered or issued under any provision of this\\n\\nchapter [including § 1228(c)(5)].” See 8 U.S.C. § 1252(a)(5). 2\\n\\n If every judicial order of removal were subject to appeal for lack of\\n\\nsubject-matter jurisdiction, the statutory framework Congress established in\\n\\n§ 1252(b) could be entirely thwarted and a multiplicity of claims (including\\n\\nhabeas claims) would thrive outside the petition-for-review process and long after\\n\\nits timeliness requirements have expired.\\n\\n Because the district court’s judicial order of removal was entered under\\n\\n§ 1228(c)(5), the judicial process established by the REAL ID Act is Thoung’s\\n\\nsole means of challenging her judicial removal order—a means that is now time-\\n\\nbarred. To comply with § 1252(a)(5), Thoung would have had to petition the\\n\\ncourt of appeals within thirty days of the district court’s entry of the final removal\\n\\norder in 2013. Despite having the opportunity to do so, she did not.\\n\\n 2. Suspension Clause\\n\\n\\n\\n\\n 2\\n Even if, arguendo, a judicial order of removal must, as a procedural\\nprerequisite, first be based on a criminal ground of removability described in\\n8 U.S.C. § 1227(a)(2), the REAL ID Act explicitly bars habeas review of such\\norders in § 1252(a)(2)(C).\\n\\n -7-\\n\\f Second, Thoung argues that even if Congress did intend to bar habeas\\n\\nreview of judicial orders of removal, it has left no meaningful alternative form of\\n\\nreview and therefore has unconstitutionally suspended the writ of habeas corpus.\\n\\nThe Suspension Clause states, “The Privilege of the Writ of Habeas Corpus shall\\n\\nnot be suspended, unless when in Cases of Rebellion or Invasion the public Safety\\n\\nmay require it.” U.S. Const. art. I, § 9, cl. 2. Thoung relies on St. Cyr’s warning\\n\\nthat “a serious Suspension Clause issue would be presented if [a statute has]\\n\\nwithdrawn that power from federal judges and provided no adequate substitute for\\n\\nits exercise.” 533 U.S. at 304–05.\\n\\n But St. Cyr goes on to observe “that Congress could, without raising any\\n\\nconstitutional questions, provide an adequate substitute through the court of\\n\\nappeals.” Id. at 314 n.38. “‘The substitution of a collateral remedy which is\\n\\nneither inadequate nor ineffective to test the legality of a person’s detention’ does\\n\\nnot violate the Suspension Clause.” Id. (quoting Swain v. Pressley, 430 U.S. 372,\\n\\n381 (1977) (alteration omitted)). This is, of course, precisely the sort of process\\n\\nthat the REAL ID Act established in 8 U.S.C. § 1252(a)(5) and § 1252(b). 3\\n\\n\\n 3\\n Although the text of the Act is clear, the House-Senate Conference\\nReport on the REAL ID Act further explained:\\n\\n Significantly, this section [§ 1252] does not eliminate judicial review, but\\n simply restores such review to its former settled forum prior to 1996.\\n Unlike AEDPA and IIRIRA, which attempted to eliminate judicial review\\n of criminal aliens’ removal orders, [this section] would give every alien one\\n (continued...)\\n\\n -8-\\n\\f Thoung bears the burden of demonstrating the inadequacy of the REAL ID\\n\\nAct’s substitute for statutory habeas jurisdiction. See Miller v. Marr, 141 F.3d\\n\\n976, 977 (10th Cir. 1998). Thoung has not met her burden of demonstrating, in\\n\\nthe context of judicial orders of removal, that the REAL ID Act’s petition for\\n\\nreview process is an inadequate or ineffective substitute. It is not clear that, had\\n\\nThoung followed the § 1252(b) review process, she would have been prevented\\n\\nfrom doing so for jurisdictional reasons. 4\\n\\n Thus, in the absence of persuasive argument to the contrary, we assume the\\n\\nREAL ID Act’s petition for review process does not offend the Suspension Clause\\n\\nwith respect to Thoung’s judicial removal order. See Gonzales-Alarcon, 884 F.3d\\n\\n\\n 3\\n (...continued)\\n day in the court of appeals, satisfying constitutional concerns.\\n\\n151 Cong. Rec. 8526 (2005) (Joint-House-Senate Conference Report) (citing St.\\nCyr, 533 U.S. at 314 n.38).\\n 4\\n Thoung points to our unpublished disposition in Musau v. Carlson, 499\\nF. App’x 837 (10th Cir. 2012), for support, but that decision does not undermine\\nour conclusion that Gonzalez-Alarcon controls. In Musau, a panel of this court\\nsimply determined that the district court’s dismissal of Musau’s habeas petition\\nwas “premature” and remanded the question for further consideration. Id. at 841.\\n The dissent in the instant case suggests this court would have lacked\\njurisdiction to reach the merits of Thoung’s appeal had she followed the REAL ID\\nAct’s petition-for-review process. But it does not necessarily follow that such a\\nresult would implicate the Suspension Clause. The authority on which the dissent\\nrelies suggests this court still could have vacated an ultra vires removal order and\\nremanded for further proceedings. See Mejia Galindo v. Sessions, 897 F.3d 894,\\n898–99 (7th Cir. 2018); Rhodes-Bradford v. Keisler, 507 F.3d 77, 81–82 (2d Cir.\\n2007). Thus, a presumably adequate forum would have existed to test the legality\\nof Thoung’s detention.\\n\\n -9-\\n\\fat 1268 (assuming “the petition for review process is an adequate substitute for\\n\\nhabeas such that the REAL ID Act’s jurisdiction-stripping provisions do not\\n\\noffend the Suspension Clause”).\\n\\n 3. Conflict with Federal Rules\\n\\n Finally, Thoung asserts that our interpretation of the REAL ID Act results\\n\\nin unintended consequences. Because the Act’s review process requires a petition\\n\\nto be filed with the court of appeals within thirty days of an order of removal,\\n\\nThoung argues that it conflicts with the federal rules of procedure concerning\\n\\ncriminal appeals. Compare Fed. R. App. P. 4(b)(1) (requiring a defendant’s\\n\\nnotice of appeal from a criminal case to be filed in the district court within\\n\\nfourteen days) with 8 U.S.C. § 1252(a)(5) (requiring the petition to be filed in the\\n\\ncourt of appeals) and id. § 1252(b)(1) (stipulating the petition must be filed\\n\\nwithin thirty days after a final order of removal). Assuming that Rule 4(b)(1) of\\n\\nthe Federal Rules of Appellate Procedure is the correct one to apply in Thoung’s\\n\\nsituation, the incongruity should not be surprising. REAL ID’s petition for\\n\\nreview process is a substitute for the statutory writ of habeas corpus, which is\\n\\nalso subject to timeliness limitations that sometimes depart from and supersede\\n\\nthe otherwise-applicable federal rules. See, e.g., 28 U.S.C. § 2255(f). Moreover,\\n\\nunlike Rule 4(b)(1), which does “not have statutory grounding” and is non-\\n\\njurisdictional, United States v. Garduno, 506 F.3d 1287, 1290 (10th Cir. 2007),\\n\\n\\n\\n -10-\\n\\fthe REAL ID Act’s timeliness requirement is both “mandatory and jurisdictional,”\\n\\nGonzales-Alarcon, 884 F.3d at 1271.\\n\\n Thoung also asserts that barring habeas review would strip district courts of\\n\\nthe power to reconsider their own orders, while immigration judges possess that\\n\\nauthority. See 8 C.F.R. § 1003.23 (2018) (immigration judge authority to reopen\\n\\nand reconsider); id. § 1003.2 (Board of Immigration Appeals authority to reopen\\n\\nand reconsider); id. § 1005 (DHS authority to reopen and reconsider). But the\\n\\nonly case Thoung cites for the proposition that district courts possess inherent\\n\\nauthority to reconsider their own removal orders refers to the power to reconsider\\n\\ninterlocutory orders and not final orders. See Been v. O.K. Indus., Inc., 495 F.3d\\n\\n1217, 1225 (10th Cir. 2007). Even if the district court possessed inherent\\n\\nauthority to reopen and reconsider its final order of removal under the\\n\\ncircumstances presented here, it certainly could not do so “by habeas corpus\\n\\nunder section 2241 of Title 28, or any other habeas corpus provision,” 8 U.S.C.\\n\\n§ 1252(a)(5). This is precisely what the REAL ID Act prohibits. Thoung’s\\n\\nsuggestion that we read “judicial review” under § 1252(a) as referring only to\\n\\nappellate review, see St. Cyr, 522 U.S. 311 (noting the “historically distinct”\\n\\nmeanings of “judicial review” and “habeas corpus”), is foreclosed by the text of\\n\\nthe Act itself. See 8 U.S.C. § 1252(a)(5) (“For purposes of this chapter, in every\\n\\nprovision that limits or eliminates judicial review or jurisdiction to review, the\\n\\n\\n\\n -11-\\n\\fterms ‘judicial review’ or ‘jurisdiction to review’ include habeas corpus\\n\\nreview.”). 5\\n\\n Because none of Thoung’s arguments ultimately persuade us that our\\n\\ninterpretation of the REAL ID Act is incorrect, we hold that the statute’s\\n\\njurisdictional limitation on judicial review of removal orders prevents Thoung\\n\\nfrom petitioning the district court for the writ of habeas corpus.\\n\\n III. Conclusion\\n\\n Because the district court lacked subject-matter jurisdiction and thus lacked\\n\\npower to enter its October 2017 Memorandum and Order, that judgment must be\\n\\nvacated. See Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d\\n\\n1096, 1128 (10th Cir. 2010).\\n\\n We therefore REMAND to the district court with directions to VACATE its\\n\\nOctober 2017 order and to dismiss Thoung’s petition without prejudice for lack of\\n\\n\\n\\n\\n 5\\n Similarly, we do not find persuasive Thoung’s argument that the venue\\nsection of § 1252(b)(2) is limited to orders entered by immigration judges. That\\nprovision may encompass district court judges, as evidenced by\\n§ 1228(c)(3)(A)(i)–(ii), which clarifies that a “judicial order of removal . . . may\\nbe appealed . . . to the court of appeals for the circuit in which the district court is\\nlocated” and that “such appeal shall be considered consistent with the\\nrequirements described in section 1252 of this title.”\\n Furthermore, more specific language in related immigration statutes may\\ntrump the general language of § 1252(b)(2) regarding immigration judges when\\nsuch language operates notwithstanding any other provision. See Osuna-\\nGuiterrez v. Johnson, 838 F.3d 1030, 1034–35 (10th Cir. 2016). Such\\n“notwithstanding any other provision” language is present in § 1228(c)(1).\\n\\n -12-\\n\\fjurisdiction. We express no view as to the merits and leave the district court’s\\n\\n2013 removal order undisturbed.\\n\\n\\n\\n\\n -13-\\n\\fThoung v. United States, No. 17-3220\", \"author\": \"TYMKOVICH, Chief Judge\"}, {\"type\": \"dissent\", \"author\": \"PHILLIPS\", \"text\": \"PHILLIPS, J., dissenting.\\n\\n In September 2002, Lina Thoung entered the United States on a visitor visa\\n\\nbelonging to another Cambodian woman, Sokheang Leng. The next year, Thoung\\n\\nsucceeded in adjusting her immigration status to lawful permanent resident, which\\n\\nallowed her to stay in the United States indefinitely. Then, in March 2007, she applied for\\n\\ncitizenship. In the form she submitted to the Department of Homeland Security, she\\n\\naffirmed that she had never provided false information to the government in any\\n\\napplication for a government benefit. And six months later, in September, she became a\\n\\nnaturalized U.S. citizen. That day, she also submitted a name-change request so that her\\n\\ncertificate of naturalization would be issued in a new name: Lina Sokheang Lanham.\\n\\n In 2012, Thoung obtained a passport, but her new identity began to unravel. The\\n\\nState Department opened a passport investigation, and agents discovered her years-long\\n\\nimmigration fraud. In July 2012, when the agents detained Thoung, she was carrying a\\n\\nKansas driver’s license and a Social Security card, both built on her fraudulent visa\\n\\nidentity. The Kansas U.S. Attorney charged her with eight counts related to her\\n\\nfraudulently obtaining government documents. By December 2012, the parties had\\n\\nreached a plea agreement. Thoung pleaded guilty to one count of document fraud, for\\n\\nviolating 18 U.S.C. § 1546(a), and the government dismissed the remaining counts. In the\\n\\nplea agreement, Thoung admitted (1) that she had used a fraudulent visa to enter the\\n\\ncountry; (2) that while here, she had parlayed the fraudulent visa (and the false\\n\\ninformation it contained) into a naturalization certificate and other government-issued\\n\\fdocuments; and (3) that she had knowingly committed these frauds. She also stipulated\\n\\nthat the government could revoke her U.S. citizenship under 8 U.S.C. § 1451(e), and she\\n\\nagreed “to enter into a Joint Stipulation for Judicial Removal” under 8 U.S.C. §\\n\\n1228(c)(5).\\n\\n On January 23, 2017, the district court issued the requested judicial removal order,\\n\\nunder 8 U.S.C. § 1228(c)(5). Appellant’s App. at 47. The court ordered Thoung removed\\n\\nto Cambodia. Immigration and Customs Enforcement immediately took Thoung into\\n\\ncustody. After six months passed without Thoung’s being deported to Cambodia,\\n\\nimmigration authorities released her subject to an Order of Supervision. Under this order,\\n\\nThoung has remained in the United States, subject to arrest and deportation.1\\n\\n In February 2017, now represented by an immigration attorney, Thoung petitioned\\n\\nfor a writ of habeas corpus before the same district court that had handled her criminal\\n\\nproceedings. This time, she argued that the sentencing court had lacked jurisdiction to\\n\\nenter the order of removal under § 1228(c)(5) because she was not removable under\\n\\n§ 1227(a)(2)(A).2 The district court denied Thoung’s habeas petition, rejecting Thoung’s\\n\\nargument that it had lacked jurisdiction to enter the 2013 removal order. Thoung v.\\n\\n\\n\\n\\n 1\\n Thoung has since married a U.S. citizen. Absent the removal order, she would be\\neligible to adjust her immigration status on that basis.\\n 2\\n In its Order of Removal filed on May 13, 2013, the district court ordered Thoung\\nremoved from this country for her § 1546(a) conviction, which, the district court ruled, fit\\nunder § 1227(a)(1)(A) and § 1227(a)(3)(B).\\n\\n 2\\n\\fUnited States, Case No. 17-3032-EFM, 2017 WL 4536421 (D. Kan. Oct. 11, 2017).\\n\\nThoung appealed.\\n\\n Before oral argument, we asked for supplemental briefing on whether the district\\n\\ncourt had jurisdiction to consider Thoung’s petition, directing the parties’ attention to 8\\n\\nU.S.C. § 1252(a)(5).3 Relying on that statute, the majority now concludes that the district\\n\\ncourt lacked subject-matter jurisdiction to consider Thoung’s habeas petition. Maj. op. at\\n\\n5–7. In doing so, it relies on these words from § 1252(a)(5): “[A] petition for review filed\\n\\nwith an appropriate court of appeals in accordance with this section shall be the sole and\\n\\nexclusive means for judicial review of an order of removal . . . .” Maj. op. at 4 (quoting\\n\\n8 U.S.C. § 1252(a)(5)). In turn, the majority notes that § 1252(b)(1) requires that such a\\n\\npetition be filed not later than 30 days after the date of the final order of removal. See id.\\n\\nat 5. Because Thoung never filed a petition for review, the majority holds that she has\\n\\nwaived her right to appellate review. Id.\\n\\n In my view, the majority’s statutory interpretation is incomplete. More fully read,\\n\\n§ 1252(a)(5) provides that “a petition for review filed with an appropriate court of\\n\\nappeals in accordance with this section shall be the sole and exclusive means for judicial\\n\\nreview of an order of removal entered or issued under any provision of this chapter . . . .”\\n\\n(emphasis added). With the italicized language restored, § 1252(a)(5) takes on a different\\n\\nmeaning. Now it requires more than a district-court document entitled “Order of\\n\\n\\n\\n 3\\n Congress restricted the scope of judicial review in immigration proceedings in\\nthe REAL ID Act. Pub. L. No. 109-13, Div. B, 119 Stat. 231, 302–23; 8 U.S.C. § 1252.\\n\\n 3\\n\\fRemoval.” Instead, it requires a hard look at the statutory legitimacy of an Order of\\n\\nRemoval. And that takes me to a question the majority’s opinion doesn’t reach: Did\\n\\n§ 1228(c)(5) authorize the district court to enter Thoung’s Order of Removal?\\n\\n To answer that question, it helps to step back to Thoung’s document-fraud\\n\\nprosecution. Though Thoung could stipulate to an order of removal, she could not\\n\\nstipulate to expand the district court’s subject-matter jurisdiction. Section 1228(c)(5)’s\\n\\nlimits confined the parties and the district court.\\n\\n This takes us to the language of § 1228(c)(5)—the statutory section the district\\n\\ncourt relied on to do just that. This subsection reads as follows:\\n\\n (5) Stipulated judicial order of removal\\n\\n The United States Attorney, with the concurrence of the Commissioner [of\\n Immigration and Naturalization], may, pursuant to Federal Rule of Criminal\\n Procedure 11, enter into a plea agreement which calls for the alien, who is\\n deportable under this chapter, to waive the right to notice and a hearing under\\n this section, and stipulate to the entry of a judicial order of removal from the\\n United States as a condition of the plea agreement or as a condition of\\n probation or supervised release, or both. The United States district court, in\\n both felony and misdemeanor cases, and a United States magistrate judge in\\n misdemeanor cases, may accept such a stipulation and shall have jurisdiction\\n to enter a judicial order of removal pursuant to the terms of such stipulation.\\n\\n§ 1228(c)(5).\\n\\n To understand this subsection, I think a good starting place is to ask what\\n\\njurisdictional requirements it puts on judicial removal orders. For me, it helps to isolate\\n\\nwhat’s required. First, the government and Thoung must enter a plea agreement under\\n\\nFed. R. Crim. P. 11 (satisfied). Second, Thoung must be deportable under this chapter\\n\\n[Chapter 12, Immigration and Nationality] (satisfied). Third, the plea agreement must call\\n\\n\\n 4\\n\\ffor Thoung to “waive the right to notice and a hearing under this section” [§ 1228\\n\\n“Expedited removal of aliens convicted of committing aggravated felonies”]\\n\\n(unsatisfied). Thoung’s plea agreement says nothing about her waiving notice and\\n\\nhearing rights under § 1228. And for good reason. Only noncitizens convicted of crimes\\n\\nmore serious than Thoung’s (those falling under § 1227(a)(2)(A)) even can stipulate to\\n\\njudicial removal. This is evident when we apply “under this section,” just as § 1228(c)(5)\\n\\ntells us to do.\\n\\n Who can waive rights to notice and hearing “under this section [§ 1228]”? Let’s\\n\\nrun through the whole section, starting with § 1228(a). That subsection ties “the\\n\\navailability of special removal proceedings” at certain correctional facilities to “aliens\\n\\nconvicted of any criminal offense covered in section 1227(a)(2)(A)(iii), (B), (C), or (D)\\n\\nof this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title for which\\n\\nboth predicate offenses are, without regard to the date of their commission, otherwise\\n\\ncovered by section 1227(a)(2)(A)(i) of this title.” Next, let’s turn to § 1228(b). That\\n\\nsubsection speaks to “the deportability of such alien under section 1227(a)(2)(A)(iii) of\\n\\nthis title (relating to conviction of an aggravated felony).” Finally, and most importantly\\n\\nsince the operative § 1228(c)(5) is nestled within it, let’s turn to § 1228(c). Here, we see\\n\\nthat 1228(c)(1)–(3) speaks to defendant noncitizens with criminal convictions covered by\\n\\n§ 1227(a)(2)(A).\\n\\n Now let’s remember how the district court correctly classified Thoung’s\\n\\nconviction—under § 1227(a)(1)(A) and § 1227(a)(3)(B). From this, I believe that Thoung\\n\\nnever had a right to notice or hearing “under this section [§ 1228],” so she obviously\\n\\n 5\\n\\fnever could have waived it. Had Thoung tried to waive section 1228 rights to notice and\\n\\nhearing, the waiver would be meaningless. Simply put, Congress has not authorized\\n\\nstipulated judicial removal orders for noncitizens convicted of her crime.\\n\\n The parenthetical “deportable under this chapter” does not change this. That\\n\\nlanguage merely sets a threshold condition, but it does not authorize stipulated removal\\n\\norders against all deportable persons. After all, not all deportable persons are even\\n\\nconvicted criminals,4 yet § 1228(c)(5) authorizes removal orders only when stipulated\\n\\nbetween the parties in plea agreements of noncitizens convicted of § 1227(a)(2)(A)\\n\\ncrimes.\\n\\n The government contends that Thoung is attempting to “graft[] the requirements\\n\\nof § 1228(c)(2)(B) onto § 1228(c)(5).” Appellee’s Br. at 14. But the government’s\\n\\nposition has wavered. The Department of Justice’s Criminal Resource Manual5 states that\\n\\n“stipulated judicial deportation should be sought only if the offense to which the alien\\n\\ndefendant will plead guilty causes him to be deportable under 8 U.S.C.\\n\\n§ 1251(a)(2)(A).”6 Thoung’s App. at 63. I agree that resource manuals are not law and\\n\\n\\n\\n 4\\n Many noncitizens become deportable without a criminal conviction—for\\ninstance, the noncitizen who overstays his work visa. See § 1227(a)(1)(C)(i).\\n 5\\n U.S. Dep’t of Justice, U.S. Attorneys’ Manual, tit. 9, Criminal Resource Manual\\n§ 1929, available at https://www.justice.gov/jm/criminal-resource-manual-1929-\\nstipulated-judicial-deportation.\\n 6\\n 8 U.S.C. § 1251(a)(2)(A) has since been moved, with some minor changes, to\\n§ 1227(a)(2)(A). Compare 8 U.S.C. § 1252(a)(2)(A) (1994) (listing “general crimes”),\\nwith 8 U.S.C. § 1227(a)(2)(A) (listing “general crimes”).\\n\\n 6\\n\\fthat § 1228(c)(5) was enacted after this manual was written. But the same basic scheme\\n\\nwas in place when the government interpreted as it did in its manual. The government has\\n\\nnot chosen to revise the manual since the enactment of § 1228(c)(5).7\\n\\n Even an ambiguity in § 1228(c)(5) on these points likely would not change the\\n\\nresult. After all, we resolve statutory ambiguities in the noncitizen’s favor “because\\n\\ndeportation is a drastic measure and at times the equivalent of banishment o[r] exile.”\\n\\nFong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948); see also United States v.\\n\\nPhommachanh, 91 F.3d 1383, 1385 (10th Cir. 1996) (“In construing § 3583(d), a\\n\\ndeportation statute, we are mindful of ‘the longstanding principle of construing any\\n\\nlingering ambiguities in deportation statutes in favor of the alien.’”) (quoting INS v.\\n\\nCardoza-Fonseca, 480 U.S. 421, 449 (1987)).\\n\\n Even if the government could surmount these problems, another serious problem\\n\\nwould await it—the canon of constitutional avoidance. See INS v. St. Cyr, 533 U.S. 289,\\n\\n299–300 (2001) (stating that “if an otherwise acceptable construction of a statute would\\n\\nraise serious constitutional problems, and where an alternative interpretation of the statute\\n\\nis ‘fairly possible,’ . . . we are obligated to construe the statute to avoid such problems.”).\\n\\nBy interpreting § 1252(a)(5) as it does, the majority risks a Suspension Clause violation.\\n\\n\\n 7\\n The government notes that this section is currently labeled “Outdated-pending\\nrevision.” Government’s Resp. Br. at 17. It appears that the government added this label\\nat some point between March and May of 2017, well after Thoung filed her habeas\\npetition. Compare\\nhttps://web.archive.org/web/20170328183729/https://www.justice.gov/usam/criminal-\\nresource-manual-1929-stipulated-judicial-deportation with\\nhttps://web.archive.org/web/20170501014453/https://www.justice.gov/usam/criminal-\\nresource-manual-1929-stipulated-judicial-deportation.\\n 7\\n\\fBarring Thoung from pursuing habeas relief, the majority leaves her with a bare right to\\n\\nfile a petition for review within thirty days of the issuance of her removal order. Maj. op.\\n\\nat 7.\\n\\n But if the district court did exceed its jurisdiction under § 1228(c)(5) by entering\\n\\nthe removal order, then that would cast serious doubt on whether the order is a “final\\n\\norder of removal” under § 1252(a). If the removal order were ultra vires, we would have\\n\\nlacked jurisdiction to consider a timely petition for review from Thoung.8 Cf. Mejia\\n\\nGalindo v. Sessions, 897 F.3d 894, 898–99 (7th Cir. 2018) (reasoning that because the\\n\\nBoard of Immigration Appeals lacked authority to enter a final removal order, the order\\n\\nwas ultra vires and the court had no jurisdiction to address the petition’s merits); Rhodes-\\n\\nBradford v. Keisler, 507 F.3d 77, 81–82 (2d Cir. 2007) (same).\\n\\n If that is so, the right to petition for review could not adequately substitute for a\\n\\nhabeas application. Hence my Suspension Clause concerns. See U.S. Const. art I, § 9,\\n\\ncl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in\\n\\nCases of Rebellion or Invasion the public Safety may require it.”); Anderson v. Holder,\\n\\n673 F.3d 1089, 1095 (9th Cir. 2012) (“Because the REAL ID Act of 2005 eliminated\\n\\nhabeas review of removal orders, leaving petitions for review as the exclusive means to\\n\\n\\n\\n 8\\n Nor could § 1252(a)(2)(D) have acted as a safety valve for Thoung’s claim. That\\nprovision states that nothing in § 1252 “which limits or eliminates judicial review, shall\\nbe construed as precluding review of constitutional claims or questions of law raised\\nupon a petition of review filed with an appropriate court of appeals in accordance with\\nthis section.” Id. (emphasis added). But to be “in accordance with this section,” a petition\\nfor review must challenge a “final order of removal.” 8 U.S.C. § 1252(a)(1), and an ultra\\nvires order is “not a final order of removal.” Mejia Galindo, 897 F.3d at 898.\\n 8\\n\\fchallenge such orders, the absence of any § 1252 jurisdiction over ultra vires removal\\n\\norders threatens to create a serious constitutional problem.”). At the very least, it is not\\n\\n“clear that the question of law could [have been] answered in another judicial forum,”\\n\\nwhich “strongly counsels against adopting a construction that would raise serious\\n\\nconstitutional questions.” See St. Cyr, 533 U.S. at 314.\\n\\n Here, a caveat. Thoung challenges the district court’s jurisdiction to issue the\\n\\nstipulated removal order. What she does not do is admit jurisdiction but then contest how\\n\\nthe district court exercised its jurisdiction. See Latu v. Ashcroft, 375 F.3d 1012, 1020\\n\\n(10th Cir. 2004) (“An official act does not become ultra vires if the officer was statutorily\\n\\nempowered to act but may have acted erroneously.”). She contends that the removal\\n\\norder was void from its inception. See Kumarasamy v. Attorney Gen. of U.S., 453 F.3d\\n\\n169, 172 (3d Cir. 2006) (upholding the district court’s jurisdiction to review a habeas\\n\\npetition, because instead of arguing that the removal order didn’t “lawfully authorize his\\n\\nremoval,” the petitioner argued that no valid removal order existed at all—that he was not\\n\\n“seeking review of a removal order”).\\n\\n In contrast, the petitioner in Gonzalez-Alarcon v. Macias challenged the district\\n\\ncourt’s underlying decision that he was not a U.S. citizen. There, we held that\\n\\n§ 1252(a)(5) barred a detainee in ICE custody from seeking to invalidate his pending\\n\\nremoval order based on his citizenship.9 884 F.3d 1266, 1275 (10th Cir. 2018). Unlike the\\n\\n\\n 9\\n Our decision in Gonzalez-Alarcon runs counter to the Ninth Circuit’s decision in\\nAnderson, which recognized that “the plain language of § 1252(b)(5) not only permits but\\nrequires [circuit courts] to evaluate a claim to United States nationality upon a petition\\nfor review, even where our jurisdiction would otherwise be limited.” 673 F.3d at 1096.\\n 9\\n\\fdistrict court in Thoung’s case, the immigration judge in Gonzalez-Alarcon had statutory\\n\\nauthority to rule on the petitioner’s citizenship claim, and even to rule incorrectly. See\\n\\nLatu, 375 F.3d at 1020. The same logic applies when a noncitizen challenges an\\n\\nimmigration judge’s legal conclusion that his criminal conviction qualifies as a statutory\\n\\nbasis for removability, a conclusion that the immigration judge is authorized to make.\\n\\nSee, e.g., Hamilton v. Holder, 584 F.3d 1284, 1288 (10th Cir. 2009) (holding that\\n\\nimmigration judges are authorized to examine PSRs to determine whether a crime\\n\\nqualifies as an “aggravated felony”) (citing Nijhawan v. Holder, 557 U.S. 29, 32 (2009)).\\n\\nAlthough district courts can find facts and reach legal conclusions, they cannot assume\\n\\njurisdiction over removal proceedings absent clear statutory authority.\\n\\n For these reasons, I would reverse the district court, remand with instructions that\\n\\nthe district court vacate the removal order, and require that Thoung’s immigration issues\\n\\nbe decided in the proper forum. I respectfully dissent.\\n\\n\\n\\n\\nBut Gonzalez-Alarcon acknowledged that the petitioner could file a motion asking the\\nimmigration judge to reopen the removal proceedings, alleviating any Suspension Clause\\nconcerns, at least “at the present time.” See 884 F.3d at 1275. And as one panelist noted,\\nthe petitioner had “an alternative means for relief”—he could have, at any time, “file[d] a\\nForm N–600,” which, if granted, would have made him “categorically ineligible for\\nremoval.” Id. at 1281–82 (Tymkovich, C.J., concurring).\\n\\n 10\"}]}"},"judge1":{"kind":"string","value":"TYMKOVICH"},"judge2":{"kind":"string","value":"HOLMES"},"judge3":{"kind":"string","value":"PHILLIPS"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":4,"string":"4"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":2,"string":"2"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4583373/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":1,"string":"1"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Lina THOUNG, Petitioner - Appellant, v. UNITED STATES of America, Respondent - Appellee.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-22\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n Tenth Circuit\n\n January 22, 2019\n PUBLISH Elisabeth A. Shumaker\n Clerk of Court\n UNITED STATES COURT OF APPEALS\n\n TENTH CIRCUIT\n\n\n\n LINA THOUNG,\n\n Petitioner - Appellant,\n v. No. 17-3220\n UNITED STATES OF AMERICA,\n\n Respondent - Appellee.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF KANSAS\n (D.C. NO. 5:17-CV-03032-EFM)\n\n\nMatthew L. Hoppock, The Hoppock Law Firm, LLC, Overland Park, Kansas, for\nPetitioner-Appellant.\n\nJared S. Maag, Assistant United States Attorney (Stephen R. McAllister, United\nStates Attorney, District of Kansas, and James A. Brown, Assistant United States\nAttorney, Chief, Appellant Division, with him on the briefs), Office of the United\nStates Attorney, Topeka, Kansas, for Respondent-Appellee.\n\n\nBefore TYMKOVICH, Chief Judge, HOLMES, and PHILLIPS, Circuit Judges.\n\n\nTYMKOVICH, Chief Judge.\n\n\n Lina Thoung illegally entered the United States in 2002. After the\n\ngovernment learned of her illegal status, she jointly stipulated to a removal order\n\fafter pleading guilty in district court to document fraud. But deportation\n\nproceedings never occurred. Five years later, she filed a writ of habeas corpus\n\nwith the district court alleging the court had lacked subject-matter jurisdiction to\n\nenter its order of removal. The district court reaffirmed its jurisdiction to order\n\nremoval and rejected Thoung’s habeas petition.\n\n We hold that, because of the REAL ID Act’s limitations on judicial review,\n\nthe district court lacked jurisdiction to entertain Thoung’s habeas petition\n\nchallenging the prior removal order.\n\n I. Background\n\n Thoung emigrated from Cambodia to the United States in 2002 using a\n\nfraudulently obtained visa in the name and birthdate of another person. In 2007,\n\nshe obtained U.S. citizenship and affirmed she had never provided false\n\ninformation to any government official while applying for any immigration\n\nbenefit.\n\n Her fraud was discovered in 2012. She subsequently pleaded guilty to\n\nmisusing a visa, permit, and other documents to obtain citizenship, in violation of\n\n18 U.S.C. § 1546(a). As part of her plea agreement, she jointly stipulated to\n\ndenaturalization under 8 U.S.C. § 1451(e) and removal from the United States.\n\nRelying on 8 U.S.C. § 1228(c)(5), the district court entered an order of removal.\n\nImmigration authorities, unable to deport Thoung back to Cambodia, eventually\n\n\n\n -2-\n\freleased her subject to an Order of Supervision. Under this order, Thoung could\n\nbe arrested and deported at any time.\n\n In 2017, Thoung filed a writ of habeas corpus—apparently under 28 U.S.C.\n\n§ 2241—alleging the district court had lacked subject-matter jurisdiction to enter\n\nthe judicial removal order requested under the plea agreement. Neither the\n\ngovernment nor the district court considered the potential applicability of the\n\nREAL ID Act, 8 U.S.C. § 1252, and the substantial limitations it imposes on\n\njudicial review. On the merits, the district court reaffirmed its jurisdiction to\n\nenter Thoung’s removal order. Thoung appealed the district court’s assertion of\n\nsubject-matter jurisdiction to enter the 2013 removal order.\n\n II. Analysis\n\n We first consider whether the district court had subject-matter jurisdiction\n\nto hear Thoung’s habeas petition, a question of statutory interpretation.\n\nGonzales-Alarcon v. Macias, 884 F.3d 1266, 1273 (10th Cir. 2018). We conclude\n\nthe REAL ID Act prevents the district court from exercising habeas jurisdiction to\n\nhear Thoung’s petition.\n\n A. The REAL ID Act’s Limitations on Judicial Review\n\n Generally, “[w]rits of habeas corpus may be granted by . . . the district\n\ncourts and any circuit judge within their respective jurisdictions.” 28 U.S.C.\n\n§ 2241(a). A person must be “in custody” to seek the habeas writ, id.\n\n\n\n -3-\n\f§ 2241(c)(1), and a person subject to removal is “in custody” for habeas purposes.\n\nSee Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir. 2001).\n\n Nevertheless, the REAL ID Act imposes substantial limitations on judicial\n\nreview, including habeas review, of final orders of removal. Removal orders may\n\nbe challenged only by way of a petition for review filed in the court of appeals.\n\nAccording to § 1252(a)(5), “petitions for review” filed with the courts of appeal\n\nare the “sole and exclusive means for judicial review from an order of removal.”\n\nAnd the statute specifically excludes “habeas corpus review pursuant to sections\n\n1241 . . . or any other habeas corpus provision.” Id. 1 That “sole and exclusive\n\nmeans for judicial review from an order of removal” is outlined in § 1252(b),\n\nwhich requires that a petition for review must be filed within thirty days of a final\n\norder of removal. Id. § 1252(b)(1). “That deadline is mandatory and\n\njurisdictional; it is not subject to equitable tolling.” Gonzales-Alarcon, 884 F.3d\n\n\n 1\n In full, section 1252(a)(5) provides:\n\n Notwithstanding any other provision of law (statutory or nonstatutory),\n including section 2241 of Title 28, or any other habeas corpus provision,\n and sections 1361 and 1651 of such title, a petition for review filed with an\n appropriate court of appeals in accordance with this section shall be the\n sole and exclusive means for judicial review from an order of removal\n entered or issued under any provision of this chapter, except as provided in\n subsection (e). For purposes of this chapter, in every provision that limits\n or eliminates judicial review or jurisdiction to review, the terms “judicial\n review” and “jurisdiction to review” include habeas corpus review pursuant\n to section 2241 of Title 28, or any other habeas corpus provision, sections\n 1361 and 1651 of such title, and review pursuant to any other provision of\n law (statutory or nonstatutory).\n\n -4-\n\fat 1271. Thus, although the REAL ID Act permits “review of constitutional\n\nclaims or questions of law raised upon a petition for review,” 8 U.S.C.\n\n§ 1252(a)(2)(D), an individual petitioning for review cannot challenge a removal\n\norder once judicial review is time-barred, see Gonzales-Alarcon, 884 F.3d at\n\n1271. By the time Thoung filed her habeas petition with the district court, the\n\ndeadline for properly filing a petition for review in accordance with the REAL ID\n\nAct had long expired.\n\n In Gonzales-Alarcon, we emphasized that “Congress clearly intended to\n\nfunnel all challenges to removal through the petition for review process.” Id. at\n\n1278. We held that “[u]nder the plain language of [§ 1252(a)(5)], a habeas\n\nchallenge to an order of removal is barred regardless of whether the petitioner is\n\nan alien or claims citizenship.” Id. at 1274.\n\n Our circuit is consistent with others in recognizing the REAL ID Act’s\n\nlimitations on habeas review. See Andrade v. Gonzales, 459 F.3d 538, 542 (5th\n\nCir. 2006) (“The REAL ID Act divests the district courts of jurisdiction over the\n\nhabeas petitions of aliens; instead, REAL ID Act § 106 states that ‘a petition for\n\nreview shall be the sole and exclusive means for judicial review of an order of\n\nremoval entered or issued under any provision of [the Immigration and\n\nNationality Act].’”); Marquez-Almanzar v. INS, 418 F.3d 210, 215 (2d Cir. 2005)\n\n(REAL ID Act “unequivocally eliminates habeas corpus review of orders of\n\nremoval.”).\n\n -5-\n\f Because Thoung’s habeas petition ultimately seeks to invalidate the district\n\ncourt’s removal order, we conclude she is seeking “judicial review of an order of\n\nremoval” in a manner prohibited by § 1252(a)(5).\n\n B. The REAL ID Act Eliminates Jurisdiction to Entertain Thoung’s\nHabeas Petition\n\n Nevertheless, Thoung raises three arguments to support her claim that the\n\ndistrict court had proper jurisdiction to entertain her habeas petition.\n\n All three ultimately fail.\n\n 1. Orders Arising from Criminal Proceedings\n\n First, Thoung contends Congress did not intend to bar habeas review of\n\njudicial removal orders because she claims the Act omits orders arising from\n\ncriminal proceedings that result in removability. The criminal offenses which are\n\ngrounds for removability are set forth in 8 U.S.C. § 1227(a)(2). She relies on INS\n\nv. St. Cyr, 533 U.S. 289 (2001), which held that AEDPA’s limitations on habeas\n\nreview did “not bar jurisdiction over removal orders not subject to judicial review\n\nunder § 1252(a)(1)—including orders against aliens who are removable by reason\n\nof having committed one or more criminal offenses.” Id. at 313.\n\n But Thoung’s interpretation misreads the REAL ID Act, which was adopted\n\nin 2005 to render the removal-challenge process consistent with St. Cyr. See 2\n\nRandy Hertz & James S. Liebman, Federal Habeas Corpus Practice and\n\nProcedure § 41.1, at 2208–15 (6th ed. 2011). The REAL ID Act expressly divests\n\n\n -6-\n\fdistrict courts of jurisdiction over habeas challenges to removal orders, including\n\nthose arising from criminal offenses, and funnels all such challenges to the\n\n“appropriate court of appeals” as the “sole and exclusive means for judicial\n\nreview of an order of removal entered or issued under any provision of this\n\nchapter [including § 1228(c)(5)].” See 8 U.S.C. § 1252(a)(5). 2\n\n If every judicial order of removal were subject to appeal for lack of\n\nsubject-matter jurisdiction, the statutory framework Congress established in\n\n§ 1252(b) could be entirely thwarted and a multiplicity of claims (including\n\nhabeas claims) would thrive outside the petition-for-review process and long after\n\nits timeliness requirements have expired.\n\n Because the district court’s judicial order of removal was entered under\n\n§ 1228(c)(5), the judicial process established by the REAL ID Act is Thoung’s\n\nsole means of challenging her judicial removal order—a means that is now time-\n\nbarred. To comply with § 1252(a)(5), Thoung would have had to petition the\n\ncourt of appeals within thirty days of the district court’s entry of the final removal\n\norder in 2013. Despite having the opportunity to do so, she did not.\n\n 2. Suspension Clause\n\n\n\n\n 2\n Even if, arguendo, a judicial order of removal must, as a procedural\nprerequisite, first be based on a criminal ground of removability described in\n8 U.S.C. § 1227(a)(2), the REAL ID Act explicitly bars habeas review of such\norders in § 1252(a)(2)(C).\n\n -7-\n\f Second, Thoung argues that even if Congress did intend to bar habeas\n\nreview of judicial orders of removal, it has left no meaningful alternative form of\n\nreview and therefore has unconstitutionally suspended the writ of habeas corpus.\n\nThe Suspension Clause states, “The Privilege of the Writ of Habeas Corpus shall\n\nnot be suspended, unless when in Cases of Rebellion or Invasion the public Safety\n\nmay require it.” U.S. Const. art. I, § 9, cl. 2. Thoung relies on St. Cyr’s warning\n\nthat “a serious Suspension Clause issue would be presented if [a statute has]\n\nwithdrawn that power from federal judges and provided no adequate substitute for\n\nits exercise.” 533 U.S. at 304–05.\n\n But St. Cyr goes on to observe “that Congress could, without raising any\n\nconstitutional questions, provide an adequate substitute through the court of\n\nappeals.” Id. at 314 n.38. “‘The substitution of a collateral remedy which is\n\nneither inadequate nor ineffective to test the legality of a person’s detention’ does\n\nnot violate the Suspension Clause.” Id. (quoting Swain v. Pressley, 430 U.S. 372,\n\n381 (1977) (alteration omitted)). This is, of course, precisely the sort of process\n\nthat the REAL ID Act established in 8 U.S.C. § 1252(a)(5) and § 1252(b). 3\n\n\n 3\n Although the text of the Act is clear, the House-Senate Conference\nReport on the REAL ID Act further explained:\n\n Significantly, this section [§ 1252] does not eliminate judicial review, but\n simply restores such review to its former settled forum prior to 1996.\n Unlike AEDPA and IIRIRA, which attempted to eliminate judicial review\n of criminal aliens’ removal orders, [this section] would give every alien one\n (continued...)\n\n -8-\n\f Thoung bears the burden of demonstrating the inadequacy of the REAL ID\n\nAct’s substitute for statutory habeas jurisdiction. See Miller v. Marr, 141 F.3d\n\n976, 977 (10th Cir. 1998). Thoung has not met her burden of demonstrating, in\n\nthe context of judicial orders of removal, that the REAL ID Act’s petition for\n\nreview process is an inadequate or ineffective substitute. It is not clear that, had\n\nThoung followed the § 1252(b) review process, she would have been prevented\n\nfrom doing so for jurisdictional reasons. 4\n\n Thus, in the absence of persuasive argument to the contrary, we assume the\n\nREAL ID Act’s petition for review process does not offend the Suspension Clause\n\nwith respect to Thoung’s judicial removal order. See Gonzales-Alarcon, 884 F.3d\n\n\n 3\n (...continued)\n day in the court of appeals, satisfying constitutional concerns.\n\n151 Cong. Rec. 8526 (2005) (Joint-House-Senate Conference Report) (citing St.\nCyr, 533 U.S. at 314 n.38).\n 4\n Thoung points to our unpublished disposition in Musau v. Carlson, 499\nF. App’x 837 (10th Cir. 2012), for support, but that decision does not undermine\nour conclusion that Gonzalez-Alarcon controls. In Musau, a panel of this court\nsimply determined that the district court’s dismissal of Musau’s habeas petition\nwas “premature” and remanded the question for further consideration. Id. at 841.\n The dissent in the instant case suggests this court would have lacked\njurisdiction to reach the merits of Thoung’s appeal had she followed the REAL ID\nAct’s petition-for-review process. But it does not necessarily follow that such a\nresult would implicate the Suspension Clause. The authority on which the dissent\nrelies suggests this court still could have vacated an ultra vires removal order and\nremanded for further proceedings. See Mejia Galindo v. Sessions, 897 F.3d 894,\n898–99 (7th Cir. 2018); Rhodes-Bradford v. Keisler, 507 F.3d 77, 81–82 (2d Cir.\n2007). Thus, a presumably adequate forum would have existed to test the legality\nof Thoung’s detention.\n\n -9-\n\fat 1268 (assuming “the petition for review process is an adequate substitute for\n\nhabeas such that the REAL ID Act’s jurisdiction-stripping provisions do not\n\noffend the Suspension Clause”).\n\n 3. Conflict with Federal Rules\n\n Finally, Thoung asserts that our interpretation of the REAL ID Act results\n\nin unintended consequences. Because the Act’s review process requires a petition\n\nto be filed with the court of appeals within thirty days of an order of removal,\n\nThoung argues that it conflicts with the federal rules of procedure concerning\n\ncriminal appeals. Compare Fed. R. App. P. 4(b)(1) (requiring a defendant’s\n\nnotice of appeal from a criminal case to be filed in the district court within\n\nfourteen days) with 8 U.S.C. § 1252(a)(5) (requiring the petition to be filed in the\n\ncourt of appeals) and id. § 1252(b)(1) (stipulating the petition must be filed\n\nwithin thirty days after a final order of removal). Assuming that Rule 4(b)(1) of\n\nthe Federal Rules of Appellate Procedure is the correct one to apply in Thoung’s\n\nsituation, the incongruity should not be surprising. REAL ID’s petition for\n\nreview process is a substitute for the statutory writ of habeas corpus, which is\n\nalso subject to timeliness limitations that sometimes depart from and supersede\n\nthe otherwise-applicable federal rules. See, e.g., 28 U.S.C. § 2255(f). Moreover,\n\nunlike Rule 4(b)(1), which does “not have statutory grounding” and is non-\n\njurisdictional, United States v. Garduno, 506 F.3d 1287, 1290 (10th Cir. 2007),\n\n\n\n -10-\n\fthe REAL ID Act’s timeliness requirement is both “mandatory and jurisdictional,”\n\nGonzales-Alarcon, 884 F.3d at 1271.\n\n Thoung also asserts that barring habeas review would strip district courts of\n\nthe power to reconsider their own orders, while immigration judges possess that\n\nauthority. See 8 C.F.R. § 1003.23 (2018) (immigration judge authority to reopen\n\nand reconsider); id. § 1003.2 (Board of Immigration Appeals authority to reopen\n\nand reconsider); id. § 1005 (DHS authority to reopen and reconsider). But the\n\nonly case Thoung cites for the proposition that district courts possess inherent\n\nauthority to reconsider their own removal orders refers to the power to reconsider\n\ninterlocutory orders and not final orders. See Been v. O.K. Indus., Inc., 495 F.3d\n\n1217, 1225 (10th Cir. 2007). Even if the district court possessed inherent\n\nauthority to reopen and reconsider its final order of removal under the\n\ncircumstances presented here, it certainly could not do so “by habeas corpus\n\nunder section 2241 of Title 28, or any other habeas corpus provision,” 8 U.S.C.\n\n§ 1252(a)(5). This is precisely what the REAL ID Act prohibits. Thoung’s\n\nsuggestion that we read “judicial review” under § 1252(a) as referring only to\n\nappellate review, see St. Cyr, 522 U.S. 311 (noting the “historically distinct”\n\nmeanings of “judicial review” and “habeas corpus”), is foreclosed by the text of\n\nthe Act itself. See 8 U.S.C. § 1252(a)(5) (“For purposes of this chapter, in every\n\nprovision that limits or eliminates judicial review or jurisdiction to review, the\n\n\n\n -11-\n\fterms ‘judicial review’ or ‘jurisdiction to review’ include habeas corpus\n\nreview.”). 5\n\n Because none of Thoung’s arguments ultimately persuade us that our\n\ninterpretation of the REAL ID Act is incorrect, we hold that the statute’s\n\njurisdictional limitation on judicial review of removal orders prevents Thoung\n\nfrom petitioning the district court for the writ of habeas corpus.\n\n III. Conclusion\n\n Because the district court lacked subject-matter jurisdiction and thus lacked\n\npower to enter its October 2017 Memorandum and Order, that judgment must be\n\nvacated. See Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d\n\n1096, 1128 (10th Cir. 2010).\n\n We therefore REMAND to the district court with directions to VACATE its\n\nOctober 2017 order and to dismiss Thoung’s petition without prejudice for lack of\n\n\n\n\n 5\n Similarly, we do not find persuasive Thoung’s argument that the venue\nsection of § 1252(b)(2) is limited to orders entered by immigration judges. That\nprovision may encompass district court judges, as evidenced by\n§ 1228(c)(3)(A)(i)–(ii), which clarifies that a “judicial order of removal . . . may\nbe appealed . . . to the court of appeals for the circuit in which the district court is\nlocated” and that “such appeal shall be considered consistent with the\nrequirements described in section 1252 of this title.”\n Furthermore, more specific language in related immigration statutes may\ntrump the general language of § 1252(b)(2) regarding immigration judges when\nsuch language operates notwithstanding any other provision. See Osuna-\nGuiterrez v. Johnson, 838 F.3d 1030, 1034–35 (10th Cir. 2016). Such\n“notwithstanding any other provision” language is present in § 1228(c)(1).\n\n -12-\n\fjurisdiction. We express no view as to the merits and leave the district court’s\n\n2013 removal order undisturbed.\n\n\n\n\n -13-\n\fThoung v. United States, No. 17-3220\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Lina THOUNG, Petitioner - Appellant, v. UNITED STATES of America, Respondent - Appellee.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-01-22\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n Tenth Circuit\\n\\n January 22, 2019\\n PUBLISH Elisabeth A. Shumaker\\n Clerk of Court\\n UNITED STATES COURT OF APPEALS\\n\\n TENTH CIRCUIT\\n\\n\\n\\n LINA THOUNG,\\n\\n Petitioner - Appellant,\\n v. No. 17-3220\\n UNITED STATES OF AMERICA,\\n\\n Respondent - Appellee.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF KANSAS\\n (D.C. NO. 5:17-CV-03032-EFM)\\n\\n\\nMatthew L. Hoppock, The Hoppock Law Firm, LLC, Overland Park, Kansas, for\\nPetitioner-Appellant.\\n\\nJared S. Maag, Assistant United States Attorney (Stephen R. McAllister, United\\nStates Attorney, District of Kansas, and James A. Brown, Assistant United States\\nAttorney, Chief, Appellant Division, with him on the briefs), Office of the United\\nStates Attorney, Topeka, Kansas, for Respondent-Appellee.\\n\\n\\nBefore TYMKOVICH, Chief Judge, HOLMES, and PHILLIPS, Circuit Judges.\\n\\n\\nTYMKOVICH, Chief Judge.\\n\\n\\n Lina Thoung illegally entered the United States in 2002. After the\\n\\ngovernment learned of her illegal status, she jointly stipulated to a removal order\\n\\fafter pleading guilty in district court to document fraud. But deportation\\n\\nproceedings never occurred. Five years later, she filed a writ of habeas corpus\\n\\nwith the district court alleging the court had lacked subject-matter jurisdiction to\\n\\nenter its order of removal. The district court reaffirmed its jurisdiction to order\\n\\nremoval and rejected Thoung’s habeas petition.\\n\\n We hold that, because of the REAL ID Act’s limitations on judicial review,\\n\\nthe district court lacked jurisdiction to entertain Thoung’s habeas petition\\n\\nchallenging the prior removal order.\\n\\n I. Background\\n\\n Thoung emigrated from Cambodia to the United States in 2002 using a\\n\\nfraudulently obtained visa in the name and birthdate of another person. In 2007,\\n\\nshe obtained U.S. citizenship and affirmed she had never provided false\\n\\ninformation to any government official while applying for any immigration\\n\\nbenefit.\\n\\n Her fraud was discovered in 2012. She subsequently pleaded guilty to\\n\\nmisusing a visa, permit, and other documents to obtain citizenship, in violation of\\n\\n18 U.S.C. § 1546(a). As part of her plea agreement, she jointly stipulated to\\n\\ndenaturalization under 8 U.S.C. § 1451(e) and removal from the United States.\\n\\nRelying on 8 U.S.C. § 1228(c)(5), the district court entered an order of removal.\\n\\nImmigration authorities, unable to deport Thoung back to Cambodia, eventually\\n\\n\\n\\n -2-\\n\\freleased her subject to an Order of Supervision. Under this order, Thoung could\\n\\nbe arrested and deported at any time.\\n\\n In 2017, Thoung filed a writ of habeas corpus—apparently under 28 U.S.C.\\n\\n§ 2241—alleging the district court had lacked subject-matter jurisdiction to enter\\n\\nthe judicial removal order requested under the plea agreement. Neither the\\n\\ngovernment nor the district court considered the potential applicability of the\\n\\nREAL ID Act, 8 U.S.C. § 1252, and the substantial limitations it imposes on\\n\\njudicial review. On the merits, the district court reaffirmed its jurisdiction to\\n\\nenter Thoung’s removal order. Thoung appealed the district court’s assertion of\\n\\nsubject-matter jurisdiction to enter the 2013 removal order.\\n\\n II. Analysis\\n\\n We first consider whether the district court had subject-matter jurisdiction\\n\\nto hear Thoung’s habeas petition, a question of statutory interpretation.\\n\\nGonzales-Alarcon v. Macias, 884 F.3d 1266, 1273 (10th Cir. 2018). We conclude\\n\\nthe REAL ID Act prevents the district court from exercising habeas jurisdiction to\\n\\nhear Thoung’s petition.\\n\\n A. The REAL ID Act’s Limitations on Judicial Review\\n\\n Generally, “[w]rits of habeas corpus may be granted by . . . the district\\n\\ncourts and any circuit judge within their respective jurisdictions.” 28 U.S.C.\\n\\n§ 2241(a). A person must be “in custody” to seek the habeas writ, id.\\n\\n\\n\\n -3-\\n\\f§ 2241(c)(1), and a person subject to removal is “in custody” for habeas purposes.\\n\\nSee Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir. 2001).\\n\\n Nevertheless, the REAL ID Act imposes substantial limitations on judicial\\n\\nreview, including habeas review, of final orders of removal. Removal orders may\\n\\nbe challenged only by way of a petition for review filed in the court of appeals.\\n\\nAccording to § 1252(a)(5), “petitions for review” filed with the courts of appeal\\n\\nare the “sole and exclusive means for judicial review from an order of removal.”\\n\\nAnd the statute specifically excludes “habeas corpus review pursuant to sections\\n\\n1241 . . . or any other habeas corpus provision.” Id. 1 That “sole and exclusive\\n\\nmeans for judicial review from an order of removal” is outlined in § 1252(b),\\n\\nwhich requires that a petition for review must be filed within thirty days of a final\\n\\norder of removal. Id. § 1252(b)(1). “That deadline is mandatory and\\n\\njurisdictional; it is not subject to equitable tolling.” Gonzales-Alarcon, 884 F.3d\\n\\n\\n 1\\n In full, section 1252(a)(5) provides:\\n\\n Notwithstanding any other provision of law (statutory or nonstatutory),\\n including section 2241 of Title 28, or any other habeas corpus provision,\\n and sections 1361 and 1651 of such title, a petition for review filed with an\\n appropriate court of appeals in accordance with this section shall be the\\n sole and exclusive means for judicial review from an order of removal\\n entered or issued under any provision of this chapter, except as provided in\\n subsection (e). For purposes of this chapter, in every provision that limits\\n or eliminates judicial review or jurisdiction to review, the terms “judicial\\n review” and “jurisdiction to review” include habeas corpus review pursuant\\n to section 2241 of Title 28, or any other habeas corpus provision, sections\\n 1361 and 1651 of such title, and review pursuant to any other provision of\\n law (statutory or nonstatutory).\\n\\n -4-\\n\\fat 1271. Thus, although the REAL ID Act permits “review of constitutional\\n\\nclaims or questions of law raised upon a petition for review,” 8 U.S.C.\\n\\n§ 1252(a)(2)(D), an individual petitioning for review cannot challenge a removal\\n\\norder once judicial review is time-barred, see Gonzales-Alarcon, 884 F.3d at\\n\\n1271. By the time Thoung filed her habeas petition with the district court, the\\n\\ndeadline for properly filing a petition for review in accordance with the REAL ID\\n\\nAct had long expired.\\n\\n In Gonzales-Alarcon, we emphasized that “Congress clearly intended to\\n\\nfunnel all challenges to removal through the petition for review process.” Id. at\\n\\n1278. We held that “[u]nder the plain language of [§ 1252(a)(5)], a habeas\\n\\nchallenge to an order of removal is barred regardless of whether the petitioner is\\n\\nan alien or claims citizenship.” Id. at 1274.\\n\\n Our circuit is consistent with others in recognizing the REAL ID Act’s\\n\\nlimitations on habeas review. See Andrade v. Gonzales, 459 F.3d 538, 542 (5th\\n\\nCir. 2006) (“The REAL ID Act divests the district courts of jurisdiction over the\\n\\nhabeas petitions of aliens; instead, REAL ID Act § 106 states that ‘a petition for\\n\\nreview shall be the sole and exclusive means for judicial review of an order of\\n\\nremoval entered or issued under any provision of [the Immigration and\\n\\nNationality Act].’”); Marquez-Almanzar v. INS, 418 F.3d 210, 215 (2d Cir. 2005)\\n\\n(REAL ID Act “unequivocally eliminates habeas corpus review of orders of\\n\\nremoval.”).\\n\\n -5-\\n\\f Because Thoung’s habeas petition ultimately seeks to invalidate the district\\n\\ncourt’s removal order, we conclude she is seeking “judicial review of an order of\\n\\nremoval” in a manner prohibited by § 1252(a)(5).\\n\\n B. The REAL ID Act Eliminates Jurisdiction to Entertain Thoung’s\\nHabeas Petition\\n\\n Nevertheless, Thoung raises three arguments to support her claim that the\\n\\ndistrict court had proper jurisdiction to entertain her habeas petition.\\n\\n All three ultimately fail.\\n\\n 1. Orders Arising from Criminal Proceedings\\n\\n First, Thoung contends Congress did not intend to bar habeas review of\\n\\njudicial removal orders because she claims the Act omits orders arising from\\n\\ncriminal proceedings that result in removability. The criminal offenses which are\\n\\ngrounds for removability are set forth in 8 U.S.C. § 1227(a)(2). She relies on INS\\n\\nv. St. Cyr, 533 U.S. 289 (2001), which held that AEDPA’s limitations on habeas\\n\\nreview did “not bar jurisdiction over removal orders not subject to judicial review\\n\\nunder § 1252(a)(1)—including orders against aliens who are removable by reason\\n\\nof having committed one or more criminal offenses.” Id. at 313.\\n\\n But Thoung’s interpretation misreads the REAL ID Act, which was adopted\\n\\nin 2005 to render the removal-challenge process consistent with St. Cyr. See 2\\n\\nRandy Hertz & James S. Liebman, Federal Habeas Corpus Practice and\\n\\nProcedure § 41.1, at 2208–15 (6th ed. 2011). The REAL ID Act expressly divests\\n\\n\\n -6-\\n\\fdistrict courts of jurisdiction over habeas challenges to removal orders, including\\n\\nthose arising from criminal offenses, and funnels all such challenges to the\\n\\n“appropriate court of appeals” as the “sole and exclusive means for judicial\\n\\nreview of an order of removal entered or issued under any provision of this\\n\\nchapter [including § 1228(c)(5)].” See 8 U.S.C. § 1252(a)(5). 2\\n\\n If every judicial order of removal were subject to appeal for lack of\\n\\nsubject-matter jurisdiction, the statutory framework Congress established in\\n\\n§ 1252(b) could be entirely thwarted and a multiplicity of claims (including\\n\\nhabeas claims) would thrive outside the petition-for-review process and long after\\n\\nits timeliness requirements have expired.\\n\\n Because the district court’s judicial order of removal was entered under\\n\\n§ 1228(c)(5), the judicial process established by the REAL ID Act is Thoung’s\\n\\nsole means of challenging her judicial removal order—a means that is now time-\\n\\nbarred. To comply with § 1252(a)(5), Thoung would have had to petition the\\n\\ncourt of appeals within thirty days of the district court’s entry of the final removal\\n\\norder in 2013. Despite having the opportunity to do so, she did not.\\n\\n 2. Suspension Clause\\n\\n\\n\\n\\n 2\\n Even if, arguendo, a judicial order of removal must, as a procedural\\nprerequisite, first be based on a criminal ground of removability described in\\n8 U.S.C. § 1227(a)(2), the REAL ID Act explicitly bars habeas review of such\\norders in § 1252(a)(2)(C).\\n\\n -7-\\n\\f Second, Thoung argues that even if Congress did intend to bar habeas\\n\\nreview of judicial orders of removal, it has left no meaningful alternative form of\\n\\nreview and therefore has unconstitutionally suspended the writ of habeas corpus.\\n\\nThe Suspension Clause states, “The Privilege of the Writ of Habeas Corpus shall\\n\\nnot be suspended, unless when in Cases of Rebellion or Invasion the public Safety\\n\\nmay require it.” U.S. Const. art. I, § 9, cl. 2. Thoung relies on St. Cyr’s warning\\n\\nthat “a serious Suspension Clause issue would be presented if [a statute has]\\n\\nwithdrawn that power from federal judges and provided no adequate substitute for\\n\\nits exercise.” 533 U.S. at 304–05.\\n\\n But St. Cyr goes on to observe “that Congress could, without raising any\\n\\nconstitutional questions, provide an adequate substitute through the court of\\n\\nappeals.” Id. at 314 n.38. “‘The substitution of a collateral remedy which is\\n\\nneither inadequate nor ineffective to test the legality of a person’s detention’ does\\n\\nnot violate the Suspension Clause.” Id. (quoting Swain v. Pressley, 430 U.S. 372,\\n\\n381 (1977) (alteration omitted)). This is, of course, precisely the sort of process\\n\\nthat the REAL ID Act established in 8 U.S.C. § 1252(a)(5) and § 1252(b). 3\\n\\n\\n 3\\n Although the text of the Act is clear, the House-Senate Conference\\nReport on the REAL ID Act further explained:\\n\\n Significantly, this section [§ 1252] does not eliminate judicial review, but\\n simply restores such review to its former settled forum prior to 1996.\\n Unlike AEDPA and IIRIRA, which attempted to eliminate judicial review\\n of criminal aliens’ removal orders, [this section] would give every alien one\\n (continued...)\\n\\n -8-\\n\\f Thoung bears the burden of demonstrating the inadequacy of the REAL ID\\n\\nAct’s substitute for statutory habeas jurisdiction. See Miller v. Marr, 141 F.3d\\n\\n976, 977 (10th Cir. 1998). Thoung has not met her burden of demonstrating, in\\n\\nthe context of judicial orders of removal, that the REAL ID Act’s petition for\\n\\nreview process is an inadequate or ineffective substitute. It is not clear that, had\\n\\nThoung followed the § 1252(b) review process, she would have been prevented\\n\\nfrom doing so for jurisdictional reasons. 4\\n\\n Thus, in the absence of persuasive argument to the contrary, we assume the\\n\\nREAL ID Act’s petition for review process does not offend the Suspension Clause\\n\\nwith respect to Thoung’s judicial removal order. See Gonzales-Alarcon, 884 F.3d\\n\\n\\n 3\\n (...continued)\\n day in the court of appeals, satisfying constitutional concerns.\\n\\n151 Cong. Rec. 8526 (2005) (Joint-House-Senate Conference Report) (citing St.\\nCyr, 533 U.S. at 314 n.38).\\n 4\\n Thoung points to our unpublished disposition in Musau v. Carlson, 499\\nF. App’x 837 (10th Cir. 2012), for support, but that decision does not undermine\\nour conclusion that Gonzalez-Alarcon controls. In Musau, a panel of this court\\nsimply determined that the district court’s dismissal of Musau’s habeas petition\\nwas “premature” and remanded the question for further consideration. Id. at 841.\\n The dissent in the instant case suggests this court would have lacked\\njurisdiction to reach the merits of Thoung’s appeal had she followed the REAL ID\\nAct’s petition-for-review process. But it does not necessarily follow that such a\\nresult would implicate the Suspension Clause. The authority on which the dissent\\nrelies suggests this court still could have vacated an ultra vires removal order and\\nremanded for further proceedings. See Mejia Galindo v. Sessions, 897 F.3d 894,\\n898–99 (7th Cir. 2018); Rhodes-Bradford v. Keisler, 507 F.3d 77, 81–82 (2d Cir.\\n2007). Thus, a presumably adequate forum would have existed to test the legality\\nof Thoung’s detention.\\n\\n -9-\\n\\fat 1268 (assuming “the petition for review process is an adequate substitute for\\n\\nhabeas such that the REAL ID Act’s jurisdiction-stripping provisions do not\\n\\noffend the Suspension Clause”).\\n\\n 3. Conflict with Federal Rules\\n\\n Finally, Thoung asserts that our interpretation of the REAL ID Act results\\n\\nin unintended consequences. Because the Act’s review process requires a petition\\n\\nto be filed with the court of appeals within thirty days of an order of removal,\\n\\nThoung argues that it conflicts with the federal rules of procedure concerning\\n\\ncriminal appeals. Compare Fed. R. App. P. 4(b)(1) (requiring a defendant’s\\n\\nnotice of appeal from a criminal case to be filed in the district court within\\n\\nfourteen days) with 8 U.S.C. § 1252(a)(5) (requiring the petition to be filed in the\\n\\ncourt of appeals) and id. § 1252(b)(1) (stipulating the petition must be filed\\n\\nwithin thirty days after a final order of removal). Assuming that Rule 4(b)(1) of\\n\\nthe Federal Rules of Appellate Procedure is the correct one to apply in Thoung’s\\n\\nsituation, the incongruity should not be surprising. REAL ID’s petition for\\n\\nreview process is a substitute for the statutory writ of habeas corpus, which is\\n\\nalso subject to timeliness limitations that sometimes depart from and supersede\\n\\nthe otherwise-applicable federal rules. See, e.g., 28 U.S.C. § 2255(f). Moreover,\\n\\nunlike Rule 4(b)(1), which does “not have statutory grounding” and is non-\\n\\njurisdictional, United States v. Garduno, 506 F.3d 1287, 1290 (10th Cir. 2007),\\n\\n\\n\\n -10-\\n\\fthe REAL ID Act’s timeliness requirement is both “mandatory and jurisdictional,”\\n\\nGonzales-Alarcon, 884 F.3d at 1271.\\n\\n Thoung also asserts that barring habeas review would strip district courts of\\n\\nthe power to reconsider their own orders, while immigration judges possess that\\n\\nauthority. See 8 C.F.R. § 1003.23 (2018) (immigration judge authority to reopen\\n\\nand reconsider); id. § 1003.2 (Board of Immigration Appeals authority to reopen\\n\\nand reconsider); id. § 1005 (DHS authority to reopen and reconsider). But the\\n\\nonly case Thoung cites for the proposition that district courts possess inherent\\n\\nauthority to reconsider their own removal orders refers to the power to reconsider\\n\\ninterlocutory orders and not final orders. See Been v. O.K. Indus., Inc., 495 F.3d\\n\\n1217, 1225 (10th Cir. 2007). Even if the district court possessed inherent\\n\\nauthority to reopen and reconsider its final order of removal under the\\n\\ncircumstances presented here, it certainly could not do so “by habeas corpus\\n\\nunder section 2241 of Title 28, or any other habeas corpus provision,” 8 U.S.C.\\n\\n§ 1252(a)(5). This is precisely what the REAL ID Act prohibits. Thoung’s\\n\\nsuggestion that we read “judicial review” under § 1252(a) as referring only to\\n\\nappellate review, see St. Cyr, 522 U.S. 311 (noting the “historically distinct”\\n\\nmeanings of “judicial review” and “habeas corpus”), is foreclosed by the text of\\n\\nthe Act itself. See 8 U.S.C. § 1252(a)(5) (“For purposes of this chapter, in every\\n\\nprovision that limits or eliminates judicial review or jurisdiction to review, the\\n\\n\\n\\n -11-\\n\\fterms ‘judicial review’ or ‘jurisdiction to review’ include habeas corpus\\n\\nreview.”). 5\\n\\n Because none of Thoung’s arguments ultimately persuade us that our\\n\\ninterpretation of the REAL ID Act is incorrect, we hold that the statute’s\\n\\njurisdictional limitation on judicial review of removal orders prevents Thoung\\n\\nfrom petitioning the district court for the writ of habeas corpus.\\n\\n III. Conclusion\\n\\n Because the district court lacked subject-matter jurisdiction and thus lacked\\n\\npower to enter its October 2017 Memorandum and Order, that judgment must be\\n\\nvacated. See Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d\\n\\n1096, 1128 (10th Cir. 2010).\\n\\n We therefore REMAND to the district court with directions to VACATE its\\n\\nOctober 2017 order and to dismiss Thoung’s petition without prejudice for lack of\\n\\n\\n\\n\\n 5\\n Similarly, we do not find persuasive Thoung’s argument that the venue\\nsection of § 1252(b)(2) is limited to orders entered by immigration judges. That\\nprovision may encompass district court judges, as evidenced by\\n§ 1228(c)(3)(A)(i)–(ii), which clarifies that a “judicial order of removal . . . may\\nbe appealed . . . to the court of appeals for the circuit in which the district court is\\nlocated” and that “such appeal shall be considered consistent with the\\nrequirements described in section 1252 of this title.”\\n Furthermore, more specific language in related immigration statutes may\\ntrump the general language of § 1252(b)(2) regarding immigration judges when\\nsuch language operates notwithstanding any other provision. See Osuna-\\nGuiterrez v. Johnson, 838 F.3d 1030, 1034–35 (10th Cir. 2016). Such\\n“notwithstanding any other provision” language is present in § 1228(c)(1).\\n\\n -12-\\n\\fjurisdiction. We express no view as to the merits and leave the district court’s\\n\\n2013 removal order undisturbed.\\n\\n\\n\\n\\n -13-\\n\\fThoung v. United States, No. 17-3220\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":386,"cells":{"id":{"kind":"number","value":4584359,"string":"4,584,359"},"name":{"kind":"string","value":"SECURITIES AND EXCHANGE COMMISSION, Plaintiff - Appellee, v. Charles D. SCOVILLE, Defendant - Appellant, and Traffic Monsoon, LLC, Defendant. Peggy Hunt, Receiver - Amicus Curiae."},"name_abbreviation":{"kind":"string","value":"SEC. & Exch. Comm'n v. Scoville"},"decision_date":{"kind":"string","value":"2019-01-24"},"docket_number":{"kind":"string","value":"17-4059"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Briscoe, Ebel, Hartz\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9887910/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"030concurrence\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9887911/\", \"author_raw\": \"\"}, {\"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS January 24, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n SECURITIES AND EXCHANGE\\n COMMISSION,\\n\\n Plaintiff - Appellee,\\n\\n v. No. 17-4059\\n\\n CHARLES D. SCOVILLE,\\n\\n Defendant - Appellant,\\n\\n and\\n\\n TRAFFIC MONSOON, LLC,\\n\\n Defendant.\\n ____________________________\\n\\n PEGGY HUNT,\\n\\n Receiver - Amicus Curiae.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Utah\\n (D.C. No. 2:16-CV-00832-JNP)\\n _________________________________\\n\\nD. Loren Washburn (Micah S. Echols and Tom W. Stewart, Marquis Aurbach Coffing,\\nLas Vegas, Nevada, with him on the briefs), Smith Correll, LLP, Salt Lake City, Utah for\\nDefendants-Appellants.\\n\\nWilliam K. Shirey (Robert B. Stebbins, General Counsel, Michael A. Conley, Solicitor,\\nwith him on the briefs), Counsel to the Solicitor, Securities and Exchange Commission,\\nWashington, D.C., for Plaintiff-Appellee.\\n\\fPeggy Hunt, Michael F. Thomson, and John J. Weist, Dorsey & Whitney LLP, filed a\\nbrief for Receiver-Amicus Curiae Peggy Hunt, in support of Plaintiff-Appellee.\\n _________________________________\\n\\nBefore BRISCOE, EBEL, and HARTZ, Circuit Judges.\\n _________________________________\\n\\nEBEL, Circuit Judge.\\n _________________________________\\n\\n This case involves an alleged worldwide Ponzi scheme and the antifraud\\n\\nprovisions of the federal Securities Act of 1933 and the Securities Exchange Act of\\n\\n1934. Defendant Charles Scoville operated an internet traffic exchange business\\n\\nthrough his Utah company, Defendant Traffic Monsoon, LLC. The Securities and\\n\\nExchange Commission (“SEC”) initiated this civil enforcement action, alleging\\n\\nDefendants were instead operating an unlawful online Ponzi scheme involving the\\n\\nfraudulent sale of securities. In this interlocutory appeal, Scoville challenges several\\n\\npreliminary orders the district court issued at the outset of this still ongoing\\n\\nenforcement action, including orders freezing Defendants’ assets, appointing a\\n\\nreceiver, and preliminarily enjoining Defendants from continuing to operate their\\n\\nbusiness.\\n\\n In upholding these preliminary rulings, we conclude first that the antifraud\\n\\nprovisions of the federal securities laws reach Traffic Monsoon’s sales to customers\\n\\noutside the United States because, applying the conduct-and-effects test added to the\\n\\nfederal securities laws by the 2010 Dodd-Frank Act, Traffic Monsoon undertook\\n\\nsignificant conduct in the United States to make those sales to persons abroad. We\\n\\nfurther conclude that Traffic Monsoon’s Adpacks (bundled internet advertising\\n\\n 2\\n\\fservices that allowed a purchaser to share in some of Traffic Monsoon’s revenue)\\n\\nqualified as investment contracts, which are securities regulated under the 1933 and\\n\\n1934 securities acts. We further conclude that the SEC has asserted sufficient\\n\\nevidence to make it likely that the SEC will be able to prove that Defendants were\\n\\noperating a fraudulent scheme—a Ponzi scheme—selling Adpacks and that scheme\\n\\nviolated the antifraud statutes invoked in this litigation. Having jurisdiction under 28\\n\\nU.S.C. § 1292(a)(1) and (2), we, therefore, AFFIRM the district court’s challenged\\n\\npreliminary orders.\\n\\n I. BACKGROUND\\n\\n The parties have very different versions of Traffic Monsoon’s business model.\\n\\nAccording to the SEC, Traffic Monsoon was operating a Ponzi scheme; that is, a\\n\\nfraudulent scheme in which the business pays returns to its investors that are\\n\\nfinanced, not by the success of the business, but instead with money acquired from\\n\\nlater investors. See S.E.C. v. Thompson, 732 F.3d 1151, 1154 n.3 (10th Cir. 2013);\\n\\nOkla. Dep’t of Sec. ex rel. Faught v. Wilcox, 691 F.3d 1171, 1173 n.2 (10th Cir.\\n\\n2012).\\n\\n Scoville claims, instead, that Traffic Monsoon is a legitimate internet traffic\\n\\nexchange offering internet advertising services. Such a business is based on the fact\\n\\nthat internet search engines such as Google use algorithms that rank more frequently\\n\\nvisited websites higher than less frequently visited websites. In light of this, website\\n\\ntraffic exchange businesses sell visits to a purchaser’s website in order to make that\\n\\n\\n\\n 3\\n\\fwebsite look more popular than it really is. Scoville operated several other website\\n\\ntraffic exchanges before starting Traffic Monsoon in September 2014.\\n\\n Scoville is the sole member, manager and registered agent of Traffic Monsoon,\\n\\na Utah limited liability company. Scoville is also Traffic Monsoon’s sole employee,\\n\\nrunning the business from his Utah apartment. The company contracts with a\\n\\nRussian computer programmer and several call centers hired to respond to telephone\\n\\ninquiries from Traffic Monsoon’s customers.\\n\\n Scoville operated Traffic Monsoon through a website,\\n\\nwww.trafficmonsoon.com, which was housed on servers physically located in the\\n\\nUnited States. Someone wanting to do business with Traffic Monsoon first had to\\n\\nbecome a member by going to the website and creating an account. The member\\n\\ncould then purchase through the website several different advertising services. For\\n\\nexample, for $5, a member could purchase twenty clicks on the member’s online\\n\\nadvertisement, and for $5.95 a member could purchase 1,000 visits to his website.\\n\\n Alternatively, instead of purchasing these services “ala carte,” a member could\\n\\npurchase an Adpack for $50. A single Adpack entitled a member to receive 1,000\\n\\nvisits to his website and twenty clicks on his internet ad (a $10.95 value), plus the\\n\\nopportunity to share in Traffic Monsoon’s revenue up to a maximum amount of $55.\\n\\nAn Adpack purchaser qualified to share in Traffic Monsoon’s revenue for each day\\n\\nthat the purchaser clicked on ten (later fifty1) internet ads for other Traffic Monsoon\\n\\n\\n1\\n For most of the time Traffic Monsoon was operating, Adpack purchasers only had\\nto click on ten ads each day to qualify for revenue sharing. In the last month of its\\n 4\\n\\fmembers’ websites and remained on the ad’s landing page for five seconds. In this\\n\\nway, Scoville gave Adpack purchasers an incentive to provide some of the\\n\\nadvertising traffic that Traffic Monsoon was selling to its members.\\n\\n Traffic Monsoon made it easy for members to complete their daily qualifying\\n\\nadvertising clicks. When an Adpack purchaser logged onto his account, Traffic\\n\\nMonsoon would present rotating ads on which the member could click.\\n\\n The [member] is required to view each banner ad for only 5 seconds,\\n and a counter appears that counts down the 5 seconds for [the member].\\n At the end of that time the [member] must click on an image that\\n appears, to verify that he is human, and then the next banner ad appears\\n automatically. The act of completing the 50 clicks takes the [member]\\n 4.1 minutes per day.\\n\\n(Aplt. App. at 18-19 ¶ 31 (bracketed material added).)\\n\\n Each day that the Adpack purchaser completed the requisite number of clicks,\\n\\nthe purchaser qualified to share in Traffic Monsoon’s revenue earned during the\\n\\npreceding twenty-four hours. Ninety-nine percent of Adpack purchasers qualified to\\n\\nshare in at least some of Traffic Monsoon’s revenue. But “neither the website nor\\n\\nany other publicly available source of information informed the members how Traffic\\n\\nMonsoon split the revenue between itself and qualified Adpack holders.” (Id. 2068\\n\\n¶ 14.) Furthermore, because Traffic Monsoon “kept no accounting records[,] . . .\\n\\nthere are no readily available documents that describe precisely how the money was\\n\\ndistributed.” (Id. 2067 ¶ 13.) Typically an Adpack purchaser would earn $1 in\\n\\n\\n\\noperation, however, Traffic Monsoon increased this requirement to fifty clicks per\\nday.\\n 5\\n\\fshared revenue for each day that he made the requisite number of qualifying clicks.\\n\\nThat meant that in approximately fifty-five days an Adpack purchaser could reach the\\n\\nmaximum $55 return, recouping the $50 the member originally paid for the Adpack\\n\\nplus earning an additional $5 (a 10% return over the fifty-five days). When an\\n\\nAdpack purchaser reached the maximum $55 limit in revenue sharing, that member\\n\\ncould either use that money to purchase another $50 Adpack, or he could withdraw\\n\\nsome or all of his money.\\n\\n A member could buy as many $50 Adpacks as he wanted; some members\\n\\nowned hundreds or even thousands of Adpacks. Significantly, no matter how many\\n\\nAdpacks a member purchased, the member could qualify to share in Traffic\\n\\nMonsoon’s revenue on all of those Adpacks through a single four-minute session\\n\\nclicking on other members’ ads. So, for example, if a member bought 100 Adpacks\\n\\nfor $5,000 and spent just four minutes a day for fifty-five days clicking on other\\n\\nTraffic Monsoon members’ ads, the Adpack purchaser would earn back the original\\n\\n$5,000 he paid for all 100 Adpacks plus an additional 10% return of $500. If a\\n\\nmember consistently rolled over his Adpacks every fifty-five days, instead of cashing\\n\\nout, he would earn a 66% annual return on his original $50 purchase and in a year he\\n\\nwould have 166 Adpacks. In three years, he could earn “$25,080—over five times\\n\\nthe initial [$5,000] investment.” (Id. 2073-74 ¶ 30.)\\n\\n A second way a Traffic Monsoon member could earn money was to recruit\\n\\nother members. The recruiting member would earn a 10% commission on every\\n\\nadvertising service the recruited member purchased. This included Adpacks the\\n\\n 6\\n\\frecruit purchased, both with new money and by rolling over earnings from prior\\n\\nAdpacks. The district court noted that “for all $50 Adpacks that were purchased by a\\n\\nreferred member, Traffic Monsoon typically deposited $60 worth of credits in\\n\\nmember accounts: $55 into the purchasing member’s account over a 55-day period\\n\\n(so long as the member qualified [to share revenue]) and $5 into the referring\\n\\nmember’s account.” (Id. 2068-69 ¶ 17.)\\n\\n The district court found that, while “[s]ome individuals initially purchased\\n\\nAdpacks principally as a way to promote their online businesses[,] . . . for many\\n\\nmembers, the profits that could be reaped from the Adpacks themselves quickly\\n\\neclipsed this motive.” (Id. 2071 ¶ 23.) “Indeed, many members have not received or\\n\\nused the web visits and banner clicks purchased in the Adpack” (id. 2072 ¶ 24),\\n\\nbecause Traffic Monsoon only delivered about 10% of the clicks and website visits it\\n\\nsold as part of the Adpacks.\\n\\n Before buying an Adpack, the member had to agree with Traffic Monson that\\n\\nthe Adpack was not an “investment” and that Traffic Monsoon’s “past performance\\n\\ndoes not guarantee [the purchaser] the same result in the future.” (Id. 2069 ¶ 18\\n\\n(internal quotation marks omitted).) Traffic Monsoon’s website also included a\\n\\nlengthy explanation to its members as to why it was not operating a Ponzi scheme.\\n\\nThe website further stated that the revenue Traffic Monsoon shared with its\\n\\nqualifying members was earned from the sale of all of its services, and not just\\n\\nAdpacks. But the website did not explain that Adpacks actually made up more than\\n\\n\\n\\n 7\\n\\f98% of Traffic Monsoon’s sales. In fact, Traffic Monsoon misrepresented that its\\n\\nother advertising services were more popular than Adpacks.\\n\\n Adpacks became enormously popular. Between October 2014 and July 2016,\\n\\nwhen the SEC initiated this civil enforcement action, members paid Traffic Monsoon\\n\\n$173 million in new money to purchase 3.4 million Adpacks and purchased\\n\\napproximately 14 million additional Adpacks—for $700 million—by rolling over\\n\\nmoney earned from earlier Adpacks. During this same time period, members paid\\n\\nonly $2.9 million for all other Traffic Monsoon advertising services. Of the total\\n\\namount of $175.9 million in cash Traffic Monsoon took in over this period, it\\n\\ndistributed approximately $88 million to its members, “leaving a difference of $87.4\\n\\nmillion between what has been paid in by members and what they have taken out.”\\n\\n(Id. 2074 ¶ 32.)\\n\\n Ninety percent of Adpacks were purchased by people who live outside the\\n\\nUnited States. Adpacks were especially popular in poorer countries, including\\n\\nBangladesh, Venezuela, and Morocco.\\n\\n “A large majority of the financial transactions the members completed with\\n\\nTraffic Monsoon—both payments made to Traffic Monsoon and withdrawals from\\n\\nthe member’s [sic] account—were conducted through PayPal.” (Id. 2066 ¶ 6.) In\\n\\nJanuary 2016, because “PayPal became concerned about the enormous growth in the\\n\\nvolume of transactions between Traffic Monsoon and its members,” PayPal “froze\\n\\nTraffic Monsoon’s account.” (Id. 2074 ¶ 33.) Traffic Monsoon then began using\\n\\nother electronic payment processors. The PayPal freeze lasted until July 11, 2016.\\n\\n 8\\n\\fThe SEC brought this enforcement action two weeks later. During those interim two\\n\\nweeks, Scoville withdrew $23 million from Traffic Monsoon’s PayPal accounts, in\\n\\nincrements of $100,000, which is the maximum withdrawal PayPal allows at one\\n\\ntime. Scoville tried to withdraw another $10 million, but PayPal reversed those\\n\\ntransactions.\\n\\n “The receiver currently has between $50-$60 million in frozen Traffic\\n\\nMonsoon assets” (id. 2075 ¶ 37), and “[t]he current combined account balance of\\n\\nTraffic Monsoon members is $34.2 million” (id. 2075 ¶ 36). But members “typically\\n\\nhad relatively little money in their account because the members would continually\\n\\nreinvest it by purchasing new Adpacks.” (Id. 2072 ¶ 27.) “If the outstanding\\n\\nAdpacks currently owned by Traffic Monsoon members had matured, the [members’]\\n\\naccount balance would” have increased from $34 million to $278.1 million.” (Id.\\n\\n2075 ¶ 36.)\\n\\n II. THIS SEC ENFORCEMENT ACTION\\n\\n The SEC initiated this civil enforcement action on July 26, 2016, invoking the\\n\\ndistrict court’s jurisdiction under 15 U.S.C. §§ 77t, 77v, 78u, and 78aa. Relevant to\\n\\nthis appeal, the SEC contends that Defendants violated § 17(a)(1) and (a)(3) of the\\n\\nSecurities Act of 1933, which prohibit fraud or deception in the offer or sale of\\n\\nsecurities,2 and § 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-\\n\\n\\n2\\n Section 17(a) provides, in relevant part:\\n\\n (a) Use of interstate commerce for purpose of fraud or deceit\\n\\n 9\\n\\f5(a) and (c), which prohibit fraud or deception “in connection with the purchase or\\n\\nsale of any security.”3 As relief, the SEC seeks to enjoin Defendants permanently\\n\\n\\n It shall be unlawful for any person in the offer or sale of any securities\\n . . . by the use of any means or instruments of transportation or\\n communication in interstate commerce or by use of the mails, directly or\\n indirectly\\n\\n (1) to employ any device, scheme, or artifice to defraud, or\\n\\n ....\\n\\n (3) to engage in any transaction, practice, or course of\\n business which operates or would operate as a fraud or\\n deceit upon the purchaser.\\n\\n15 U.S.C. § 77q(a)(1), (3).\\n3\\n Section 10 provides, in relevant part:\\n\\n It shall be unlawful for any person, directly or indirectly, by the use of\\n any means or instrumentality of interstate commerce or of the mails, or\\n of any facility of any national securities exchange—\\n\\n ....\\n\\n (b) To use or employ, in connection with the purchase or\\n sale of any security registered on a national securities\\n exchange or any security not so registered, . . . any\\n manipulative or deceptive device or contrivance in\\n contravention of such rules and regulations as the\\n Commission may prescribe as necessary or appropriate in\\n the public interest or for the protection of investors.\\n\\n15 U.S.C. § 78j(b). The SEC promulgated its Rule 10b-5 under § 10(b)’s authority.\\nSee Janus Capital Grp., Inc. v. First Derivative Traders, 564 U.S. 135, 141-42 (2011).\\nRelevant here, Rule 10b-5 provides:\\n\\n It shall be unlawful for any person, directly or indirectly, by the use of\\n any means or instrumentality of interstate commerce, or of the mails or\\n of any facility of any national securities exchange,\\n 10\\n\\ffrom engaging in this scheme, to impose civil penalties, and to disgorge all\\n\\nDefendants’ “ill-gotten gains” (Aplt. App. 32).\\n\\n At the time the SEC initiated this enforcement action, it obtained ex parte three\\n\\npreliminary orders from the district court 1) freezing Defendants’ assets;\\n\\n2) appointing a receiver over those assets and over Defendants’ business; and\\n\\n3) entering a temporary restraining order (“TRO”) prohibiting Defendants from\\n\\ncontinuing to operate their business. After an adversarial evidentiary hearing, the\\n\\ndistrict court made the TRO a preliminary injunction and denied Defendants’ motion\\n\\nto set aside the receivership. It is these two rulings that are at issue in this\\n\\ninterlocutory appeal.\\n\\n We grant the receiver’s motion to appear on appeal as an amicus. The receiver\\n\\nasserts that, although the notice of appeal named both Scoville and Traffic Monsoon\\n\\nas appellants, the receiver has not authorized Traffic Monsoon’s appeal.\\n\\n\\n\\n (a) To employ any device, scheme, or artifice to defraud,\\n [or]\\n\\n ....\\n\\n (c) To engage in any act, practice, or course of business\\n which operates or would operate as a fraud or deceit upon\\n any person,\\n\\n in connection with the purchase or sale of any security.\\n\\n17 C.F.R. § 240.10b-5. Because “Rule 10b-5 . . . is coextensive with the coverage of\\n§ 10(b),” we will refer primarily to § 10(b). S.E.C. v. Smart, 678 F.3d 850, 856 n.7\\n(10th Cir. 2012) (internal quotation marks omitted).\\n\\n 11\\n\\fFurthermore, the attorney who filed the notice of appeal informed the district court\\n\\nthat, while he represented Scoville, the attorney did not represent Traffic Monsoon\\n\\nbecause the company was in receivership. For these reasons, Traffic Monsoon is not\\n\\na proper party to this appeal. Nevertheless, the district court recently authorized\\n\\nScoville “to appeal and advance arguments on behalf of Traffic Monsoon in th[is]\\n\\nappeal.” (Doc. 120.)4 Consequently, our rulings on this appeal similarly apply to\\n\\nTraffic Monsoon.\\n\\n III. STANDARD OF REVIEW\\n\\n This court reviews the district court’s order appointing a receiver, and refusing\\n\\nto set aside that order, for an abuse of discretion. See DeTar Distrib. Co. v. Tri-State\\n\\nMotor Transit Co., 379 F.2d 244, 252 (10th Cir. 1967). See generally SEC v. Vescor\\n\\nCapital Corp., 599 F.3d 1189, 1194, 1198 (10th Cir. 2010) (recognizing, in SEC civil\\n\\naction, district court’s equitable power to appoint a receiver and the court’s “broad\\n\\npowers and wide discretion to determine relief in an equity receivership” (internal\\n\\nquotation marks, alteration omitted)).\\n\\n We also review the district court’s decision to grant a preliminary injunction\\n\\nfor an abuse of discretion. See McDonnell v. City & Cty. of Denver, 878 F.3d 1247,\\n\\n1252 (10th Cir. 2018). “A district court abuses its discretion when it commits an\\n\\nerror of law or relies upon a clearly erroneous factual finding.” Id. (internal\\n\\nquotation marks omitted).\\n\\n\\n4\\n We GRANT Scoville’s motion to supplement the record with the district court’s\\namended order.\\n 12\\n\\f A movant is not entitled to a preliminary injunction unless he can\\n show: (1) he is likely to succeed on the merits of his claim; (2) he will\\n suffer irreparable harm if the injunction is denied; (3) his threatened\\n injury outweighs the harm the grant of the injunction will cause the\\n opposing party; and (4) if issued, the injunction will not adversely affect\\n the public interest. Because the grant of a preliminary injunction is “an\\n extraordinary remedy,” the movant must make a “clear showing” that he\\n is entitled to the injunction. Winter v. Nat. Res. Def. Council, Inc., 555\\n U.S. 7, 22 . . . (2008). Further, the movant must meet a heightened burden\\n if he seeks a preliminary injunction, like the one [at issue here], that will\\n alter the status quo. When “seeking such an injunction [the movant] must\\n make a strong showing both with regard to the likelihood of success on\\n the merits and with regard to the balance of the harms.” O Centro Espirita\\n Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 976 (10th Cir.\\n 2004) (en banc) [(per curiam)].\\n\\nMcDonnell, 878 F.3d at 1252 (citations omitted) (bracketed material added).5 On\\n\\nappeal, Scoville focuses only on whether the SEC has made a sufficient showing of\\n\\nthe likelihood of its success on its antifraud claims.\\n\\n\\n\\n\\n IV. DISCUSSION\\n\\n Scoville challenges both the preliminary injunction and the receivership\\n\\nprimarily on three grounds. First, he contends that the antifraud provisions of the\\n\\nfederal securities acts do not apply to offers to sell, and sales of, Adpacks to Traffic\\n\\nMonsoon members located outside the United States. The extraterritorial reach of a\\n\\n\\n\\n5\\n The district court required the SEC in this case to make this heightened showing\\nbecause the preliminary injunction at issue here did more than maintain the status\\nquo, it also required Traffic Monsoon affirmatively to provide the receiver with any\\ninformation she deemed necessary. We accept that same analysis for purposes of this\\nappeal.\\n 13\\n\\ffederal statute is a matter of congressional intent and Congress has clearly indicated,\\n\\nthrough the 2010 Dodd-Frank Act amendments to the securities laws, that the\\n\\nantifraud provisions apply when either significant steps are taken in the United States\\n\\nto further a violation of those antifraud provisions or conduct outside the United\\n\\nStates has a foreseeable substantial effect within the United States. Because Scoville\\n\\nengaged in conduct within the United States that has been shown likely to have\\n\\nviolated the securities laws, we conclude the antifraud provisions reach Traffic\\n\\nMonsoon’s sale of Adpacks outside the United States.\\n\\n Second, Scoville argues that Adpacks are not “securities” and so are not\\n\\nsubject to federal securities laws. We reject that argument because Adpacks meet the\\n\\nthree-part test for investment contracts, which qualify as securities regulated by\\n\\nfederal law.\\n\\n Lastly, Scoville contends that the SEC has failed to show it is likely to succeed\\n\\nin proving the elements of its antifraud claims and, in particular, cannot show that\\n\\nDefendants engaged in a fraudulent securities scheme with the requisite scienter. We\\n\\nreject those arguments because the SEC presented sufficient evidence that\\n\\nDefendants were likely operating a fraudulent scheme—a Ponzi scheme—and likely\\n\\ndoing so with the required scienter. For these reasons, explained in greater detail\\n\\nbelow, and because we conclude the remainder of Scoville’s arguments lack merit,\\n\\nwe affirm the district court’s rulings entering a preliminary injunction and refusing to\\n\\nset aside the receivership.\\n\\n\\n\\n 14\\n\\fA. The antifraud provisions reach Traffic Monsoon’s sales of, or offers to sell,\\nAdpacks to purchasers located outside the United States\\n\\n Scoville first asserts that the antifraud provisions of the federal securities acts\\n\\ndo not reach Traffic Monsoon’s sales of, or offers to sell, Adpacks to people living\\n\\noutside the United States. That amounts to 90% of Traffic Monsoon’s Adpack sales.\\n\\n 1. Congress has provided that the antifraud provisions apply\\n extraterritorially when significant steps are taken in the United States to\\n further a violation or conduct occurring outside the United States has a\\n foreseeable substantial effect within the United States\\n\\n Whether a federal statute applies to conduct outside the United States is a\\n\\nquestion of congressional intent. See Morrison v. Nat’l Australia Bank Ltd., 561\\n\\nU.S. 247, 255 (2010). There is a presumption that Congress intends a statute to apply\\n\\nonly within the United States, see id., unless Congress has “affirmatively and\\n\\nunmistakably” indicated that the statute should apply extraterritorially, RJR Nabisco,\\n\\nInc. v. European Cmty., 136 S. Ct. 2090, 2100 (2016). “When a statute gives no\\n\\nclear indication of an extraterritorial application, it has none.” Morrison, 561 U.S. at\\n\\n255.\\n\\n “Th[e] [Supreme] Court has established a two-step framework for deciding\\n\\nquestions of extraterritoriality.” WesternGeco LLC. v. ION Geophysical Corp., 138\\n\\nS. Ct. 2129, 2136 (2018). “The first step asks ‘whether the presumption against\\n\\nextraterritoriality has been rebutted.’” Id. (quoting RJR Nabisco, 136 S. Ct. at 2101).\\n\\n“If the presumption against extraterritoriality has not been rebutted, the second step\\n\\nof our framework asks ‘whether the case involves a domestic application of the\\n\\n\\n\\n 15\\n\\fstatute.’” Id. (quoting RJR Nabisco, 136 S. Ct. at 2101). If either step is satisfied,\\n\\nthe statute applies to the challenged conduct. See id.\\n\\n Here, we can resolve at step one the question of the extraterritorial reach of the\\n\\nantifraud provisions because it is clear that Congress “affirmatively and\\n\\nunmistakably” directed that those provisions apply extraterritorially in an\\n\\nenforcement action. Through the 2010 Dodd-Frank Act, Congress amended both the\\n\\n1933 and 1934 securities acts to state:\\n\\n The district courts of the United States and the United States courts\\n of any Territory shall have jurisdiction of an action or proceeding brought\\n or instituted by the Commission or the United States alleging a violation\\n of section 77q(a) of this title [Section 17(a) of the 1933 Securities Act]\\n involving—\\n\\n (1) conduct within the United States that constitutes\\n significant steps in furtherance of the violation, even if the\\n securities transaction occurs outside the United States and\\n involves only foreign investors; or\\n\\n (2) conduct occurring outside the United States that has a\\n foreseeable substantial effect within the United States.\\n\\n15 U.S.C. § 77v(c) (bracketed material added); see also id. § 78aa(b) (amended 1934\\n\\nSecurities Exchange Act providing federal district courts with “jurisdiction of an\\n\\naction or proceeding brought or instituted by the [SEC] or the United States alleging a\\n\\nviolation of the antifraud provisions of this chapter involving--(1) conduct within the\\n\\nUnited States that constitutes significant steps in furtherance of the violation, even if the\\n\\nsecurities transaction occurs outside the United States and involves only foreign\\n\\ninvestors; or (2) conduct occurring outside the United States that has a foreseeable\\n\\nsubstantial effect within the United States”).\\n\\n 16\\n\\f Scoville argues that, while Dodd-Frank amended these jurisdictional\\n\\nprovisions of the securities acts, Congress has not expressly stated that the antifraud\\n\\nprovisions of those securities acts apply extraterritorially. We reject that argument in\\n\\nlight of the specific context in which Congress enacted the 2010 jurisdictional\\n\\namendments as part of the Dodd-Frank Act. See Morrison, 561 U.S. at 265 (stating,\\n\\nin determining whether a statute applies extraterritorially, that “[a]ssuredly context\\n\\ncan be consulted”); see also RJR Nabisco, 136 S. Ct. at 2102; Kiobel v. Royal Dutch\\n\\nPetroleum Co., 569 U.S. 108, 119 (2013) (looking to “historical background against\\n\\nwhich the [statute at issue there] was enacted” to determine whether presumption\\n\\nagainst extraterritorial application had been rebutted).\\n\\n Historically, Congress, in originally enacting the federal securities acts in 1933\\n\\nand 1934, did not address the extraterritorial reach of the antifraud provisions of\\n\\nthose statutes. See Morrison, 561 U.S. at 255 (addressing specifically § 10(b)).\\n\\nNotwithstanding that fact, courts of appeals for over forty years applied the antifraud\\n\\nprovisions of those acts extraterritorially when “wrongful conduct occurred in the\\n\\nUnited States” or when conduct outside the United States had a “substantial effect in\\n\\nthe United States or upon United States citizens.” Id. at 257 (internal quotation\\n\\nmarks omitted); see also id. at 255-60. This became known as the conduct-and-\\n\\neffects test. Id. at 259; see also id. at 257-59. The courts of appeals treated\\n\\napplication of the conduct-and-effects test to decide when the federal securities acts\\n\\napplied extraterritorially as a matter of subject-matter jurisdiction. Id. at 253-54,\\n\\n257-60.\\n\\n 17\\n\\f In 2006, in a completely different context (a Title VII employment case), the\\n\\nSupreme Court addressed the difference between matters that implicate a federal\\n\\ncourt’s subject-matter jurisdiction and matters that go, instead, to proving an element\\n\\nof a claim. See Arbaugh v. Y&H Corp., 546 U.S. 500, 503 (2006). Distinguishing\\n\\nbetween the two issues also turns on congressional intent. Id. at 514-15. In Arbaugh,\\n\\nthe Supreme Court held that the statutory provision restricting application of Title\\n\\nVII only to employers with fifteen or more employees was not a jurisdictional\\n\\nprerequisite but instead went to the merits of a Title VII claim. 546 U.S. at 503, 515-\\n\\n16. The Court reached that conclusion because Congress placed this fifteen-\\n\\nemployee requirement, not in the statute’s jurisdictional provision, but instead in the\\n\\ndefinitions section of the statute, id. at 514-15; “when Congress does not rank a\\n\\nstatutory limitation on coverage as jurisdictional, courts should treat the restriction as\\n\\nnonjurisdictional in character,” id. at 516.\\n\\n Returning to the specific question at issue here, the extraterritorial reach of the\\n\\nantifraud provisions of the federal securities laws, the Second Circuit, in 2008,\\n\\napplied a conduct-and-effects test to such a securities case in Morrison v. National\\n\\nAustralian Bank Ltd. to determine the district court’s subject-matter jurisdiction. 547\\n\\nF.3d 167, 170-71 (2d Cir. 2008). In doing so, however, the Second Circuit noted that\\n\\nCongress, in enacting the securities laws, had never addressed the extraterritorial\\n\\nreach of their antifraud provisions and “urge[d] that this significant omission receive\\n\\nthe appropriate attention of Congress . . . .” Id. at 170 & n.4. The Supreme Court\\n\\n\\n\\n 18\\n\\fgranted certiorari to review the Second Circuit’s Morrison decision. See 558 U.S.\\n\\n1047 (Nov. 30, 2009).\\n\\n In the meantime, Congress accepted the Second Circuit’s invitation and, in\\n\\nOctober 2009, amendments to the federal securities acts were proposed that would\\n\\neventually become § 929P(b) of the Dodd-Frank Act; those amendments added the\\n\\nextraterritorial language now found in 15 U.S.C. §§ 77v(c) and 78aa(b), quoted\\n\\npreviously in this opinion, see supra p. 16.\\n\\n The Supreme Court, however, decided Morrison before Congress finalized\\n\\nthose amendments. The specific question presented to the Supreme Court in\\n\\nMorrison was whether § 10(b), the antifraud provision of the 1934 Act, applied to\\n\\npurchases by Australians on the Australian stock exchange of shares in the National\\n\\nBank of Australia. 561 U.S. at 250-52. The Australian purchasers brought suit in the\\n\\nUnited States under American securities laws, alleging that the Australian Bank’s\\n\\nstock lost value after the Bank bought an American mortgage servicing company\\n\\nwhose owners had misrepresented the value of that company to the Australian Bank.\\n\\nId. at 251-53.\\n\\n In Morrison, the Supreme Court, relying on the Arbaugh line of cases, first\\n\\nheld, contrary to decades of circuit-level authority, that the question of whether\\n\\nfederal securities laws applied extraterritorially was not a matter of subject-matter\\n\\njurisdiction, but instead went to the merits of the claim. Id. at 253-54 (“[T]o ask\\n\\nwhat conduct § 10(b) reaches is to ask what conduct § 10(b) prohibits, which is a\\n\\n\\n\\n 19\\n\\fmerits question. Subject-matter jurisdiction, by contrast, refers to a tribunal’s power\\n\\nto hear a case.” (internal quotation marks omitted)).\\n\\n Second, Morrison held that, because Congress, in originally enacting § 10(b),\\n\\ndid not address whether that provision applied extraterritorially, § 10(b) did not apply\\n\\noutside the United States. Id. at 255. Morrison, therefore, concluded that the courts\\n\\nof appeals were wrong to apply their conduct-and-effects tests to determine when\\n\\n§ 10(b) applied outside the United States because § 10(b) simply did not apply\\n\\nextraterritorially. Id. at 255-65. Instead, focusing on the language of § 10(b), the\\n\\nCourt held that that antifraud provision only applied domestically; that is, to fraud\\n\\nonly “in connection with the purchase or sale of a security listed on an American\\n\\nstock exchange, and the purchase or sale of any other security in the United States.”6\\n\\nId. at 273.\\n\\n The Supreme Court issued Morrison on June 24, 2010. At that time, the\\n\\nproposed Dodd-Frank Act was before a joint congressional committee tasked with\\n\\nironing out differences in the House and Senate versions of that bill. One such\\n\\ndifference was that the House had included what eventually became § 929P(b),\\n\\naddressing as a jurisdictional matter the extraterritorial application of the antifraud\\n\\n\\n6\\n Morrison addressed § 10(b) of the 1934 Act, which makes it unlawful to use fraud\\n“in connection with the purchase or sale of any security.” Morrison, 561 U.S. at 262\\n(quoting 15 U.S.C. § 78j(b)). The 1933 Act, instead, makes it unlawful to use fraud\\nin selling, or offering to sell, a security. See 15 U.S.C. § 77q(a)(1), (3). But\\nMorrison noted that “[t]he same focus on domestic transactions is evident in the\\nSecurities Act of 1933, enacted by the same Congress as the [1934] Exchange Act,\\nand forming part of the comprehensive regulation of securities trading.” 561 U.S. at\\n268 (citation omitted).\\n 20\\n\\fprovisions, while the Senate had removed that proposed amendment. The day that\\n\\nthe Supreme Court issued Morrison was the final day that the joint committee\\n\\nconsidered the proposed Dodd-Frank Act. See SEC v. Gruss, 859 F. Supp. 2d 653,\\n\\n664 (S.D. N.Y. 2012). The committee published the final version of the bill several\\n\\ndays later, and it included § 929P(b). The Dodd-Frank Act was enacted into law on\\n\\nJuly 21, 2010, less than a month after Morrison.\\n\\n Morrison, then, contrary to forty years of circuit-level law, held that the\\n\\nquestion of the extraterritorial reach of § 10(b) did not implicate a court’s subject-\\n\\nmatter jurisdiction; instead, other provisions of the securities acts gave district courts\\n\\nsubject-matter jurisdiction to hear SEC enforcement actions generally. 561 U.S. at\\n\\n254-55 (citing 15 U.S.C. § 78aa). But Congress, in the Dodd-Frank Act, amended\\n\\nonly the jurisdictional sections of the securities laws to indicate that the antifraud\\n\\nprovisions applied extraterritorially when a version of the conduct-and-effects test is\\n\\nmet. The Dodd-Frank Act did not make any explicit revisions to the substantive\\n\\nantifraud provisions themselves. See generally U.S. SEC v. Chicago Convention\\n\\nCtr., LLC, 961 F. Supp. 2d 905, 910 (N.D. Ill. 2013) (recognizing that “the plain\\n\\nlanguage of the Section 929P(b) seems purely jurisdictional—particularly in light of\\n\\nits placement in the jurisdictional section of the Exchange Act—yet the\\n\\nCongressional intent behind that provision supports the conclusion that the provision\\n\\nis substantive”).\\n\\n Notwithstanding the placement of the Dodd-Frank amendments in the\\n\\njurisdictional provisions of the securities acts, given the context and historical\\n\\n 21\\n\\fbackground surrounding Congress’s enactment of those amendments, it is clear to us\\n\\nthat Congress undoubtedly intended that the substantive antifraud provisions should\\n\\napply extraterritorially when the statutory conduct-and-effects test is satisfied. We\\n\\nagree, then, with the district court, which stated:\\n\\n Although courts generally presume that Congress is familiar with the\\n precedents of the Supreme Court when it enacts legislation, the close\\n proximity between the date when Morrison was issued and the date when\\n the language of Dodd-Frank was finalized, greatly undermines this\\n presumption. It strains credulity to assume that legislators read Morrison\\n on the last day that they met to negotiate the final version of a massive\\n 850-page omnibus bill designed to overhaul large swaths of the United\\n States financial regulations and consciously chose to enact Section\\n 929P(b) against the background of the fundamental shift in securities law\\n brought about by Morrison. Given this timing, the more reasonable\\n assumption is that Morrison was issued too late in the legislative process\\n to reasonably permit Congress to react to it.\\n\\n(Aplt. App. 2086-87.)\\n\\n This conclusion is bolstered by the title Congress gave this section of the\\n\\nDodd-Frank Act, “STRENGTHENING ENFORCEMENT BY THE COMMISSION.”\\n\\nDodd-Frank Wall Street Reform and Consumer Protection Act, PL 111-203 (July 21,\\n\\n2010), 124 Stat 1376. See generally Almendarez-Torres v. United States, 523 U.S.\\n\\n224, 234 (1998) (“[T]he title of a statute and the heading of a section are tools\\n\\navailable for the resolution of a doubt about the meaning of a statute.”) (internal\\n\\nquotation marks omitted)). In another section, § 929Y, the Dodd-Frank Act directed\\n\\nthe SEC to “solicit public comment and thereafter conduct a study to determine the\\n\\nextent to which private rights of action under the antifraud provisions” of the 1934\\n\\nAct “should be extended” extraterritorially. We agree with the district court that this\\n\\n\\n 22\\n\\fsuggests Congress believed it “had extended the SEC’s authority to bring an\\n\\n[antifraud] enforcement action in Section 929P(b).” (Aplt. App. 2089 (emphasis\\n\\nadded).) Furthermore, several members of Congress, including § 929P’s drafter,\\n\\nRepresentative Paul Kanjorski, stated that the purpose of that provision was to make\\n\\nclear that the antifraud provisions apply extraterritorially in enforcement actions.\\n\\n For all of these reasons, then, we conclude that Congress has “affirmatively\\n\\nand unmistakably” indicated that the antifraud provisions of the federal securities\\n\\nacts apply extraterritorially when the statutory conduct-and-effects test is met.\\n\\n 2. Because Dodd-Frank’s conduct-and-effects test is met here, the\\n antifraud provisions apply to Defendants’ sales of, and offers to sell,\\n Adpacks to customers located outside the United States\\n\\n Having determined that the antifraud provisions of the federal securities\\n\\nacts can apply extraterritorially when the statutory conduct-and-effect test is\\n\\nmet, we now apply that test to Traffic Monsoon’s sales of, and offers to sell,\\n\\nAdpacks to customers located outside the United States. The scope of that\\n\\nextraterritorial application turns on congressional intent; that is, “on the limits\\n\\nCongress has . . . imposed on the statute[s’] foreign application.” RJR\\n\\nNabisco, 136 S. Ct. at 2101. Here, Congress limited the extraterritorial\\n\\napplication of the antifraud provisions in enforcement actions to\\n\\n (1) conduct within the United States that constitutes\\n significant steps in furtherance of the violation, even if the\\n securities transaction occurs outside the United States and\\n involves only foreign investors; [and]\\n\\n (2) conduct occurring outside the United States that has a\\n foreseeable substantial effect within the United States.\\n\\n 23\\n\\f15 U.S.C. § 77v(c); see also id. § 78aa(b).\\n\\n We agree with the district court that Defendants’ “‘conduct within the United\\n\\nStates . . . constitute[d] significant steps in furtherance of the violation’ of Rule 10b-5\\n\\nand Section 17(a). Mr. Scoville conceived and created Traffic Monsoon in the\\n\\nUnited States. Through Traffic Monsoon, he created and promoted the Adpack\\n\\ninvestments over the internet while residing in Utah.” (Aplt. App. 2091.) We add\\n\\nthat the servers housing the Traffic Monsoon website were physically located in the\\n\\nUnited States. For these reasons, the district court correctly held that the antifraud\\n\\nprovisions of the federal securities acts encompass Defendants’ sales of, and offers to\\n\\nsell, Adpacks to Traffic Monsoon members located outside the United States.\\n\\nB. Adpacks are “securities”\\n\\n Scoville next contends that Adpacks are not “securities” and therefore\\n\\nDefendants are not subject to federal securities laws. Like the district court, we\\n\\ndisagree.\\n\\n As an initial matter, Scoville argues that the question of whether Adpacks are\\n\\n“securities” implicates federal courts’ subject-matter jurisdiction. We disagree, for\\n\\nthe same reasons the Supreme Court in Morrison held that whether the statute applied\\n\\nextraterritorially was not a jurisdictional issue. See 561 U.S. at 251, 253-54 & n.3\\n\\n(distinguishing, in § 10(b) enforcement action, between provisions in federal\\n\\nsecurities statutes giving district courts subject-matter jurisdiction—the power to hear\\n\\na case—from questions of what conduct § 10(b) reaches, “which is a merits\\n\\n\\n 24\\n\\fquestion”). Instead, the question of whether Adpacks are “securities” is a merits\\n\\ninquiry. See, e.g., Avenue Capital Mgmt. II, L.P. v. Schaden, 843 F.3d 876, 880-81,\\n\\n886 (10th Cir. 2016) (affirming dismissal of private claim under the 1934 Act for\\n\\nfailure to state a claim on which relief can be granted because plaintiffs failed to\\n\\nshow that the challenged transactions were “securities”).\\n\\n Answering that merits inquiry, we agree with the district court that Adpacks\\n\\nqualify as securities regulated under the 1933 and 1934 acts. “Congress enacted the\\n\\nSecurities Acts in response to ‘serious abuses in a largely unregulated securities\\n\\nmarket,’ and for the purpose of regulating ‘investments, in whatever form they are\\n\\nmade and by whatever name they are called.” SEC v. Shields, 744 F.3d 633, 641\\n\\n(10th Cir. 2014) (quoting Reves v. Ernst & Young, 494 U.S. 56, 60–61 (1990)).\\n\\n“Congress ‘painted with a broad brush’ in defining a ‘security’ in recognition of the\\n\\n‘virtually limitless scope of human ingenuity, especially in the creation of “countless\\n\\nand variable schemes devised by those who seek the use of the money of others on\\n\\nthe promise of profits. . . .”’” Id. (quoting Reves, 494 U.S at 60-61). Nevertheless,\\n\\n“‘Congress, in enacting the securities laws, did not intend to provide a broad federal\\n\\nremedy for all fraud.’” Id. at 642 (quoting Marine Bank v. Weaver, 455 U.S. 551,\\n\\n556 (1982)).\\n\\n\\n\\n\\n 25\\n\\f The 1933 Act defines “security” to include an “investment contract,” 15\\n\\nU.S.C. § 77b(a)(1), and that is what the district court determined an Adpack is.7\\n\\nAlthough the Act did not further define “investment contract,” the Supreme Court did\\n\\nin SEC v. W.J. Howey Co., 328 U.S. 293 (1946). In Howey, the owner of a large\\n\\nFlorida citrus grove sold small pieces of the grove to the public to help finance the\\n\\ngrove’s further development. Id. at 294-95. The purchasers of these small parts of\\n\\nthe grove were “for the most part . . . non-residents of Florida. They [we]re\\n\\npredominantly business and professional people who lack the knowledge, skill and\\n\\nequipment necessary for the care and cultivation of citrus trees. They [we]re\\n\\nattracted by the expectation of substantial profits.” Id. at 296. Purchasers received\\n\\nthe deed to the small pieces of land they bought and the option to hire the seller or\\n\\nsome other company to cultivate and market the fruit grown on that particular piece\\n\\nof land, with the net proceeds to be paid to the land purchaser. Id. at 295-96.\\n\\nOwners of 85% of the pieces of land sold hired the grove owner to cultivate and\\n\\nmarket their sections of the grove. Id. at 295. Howey held that a purchaser’s “land\\n\\nsales contract, the warranty deed [he received] and the service contract together\\n\\nconstitute[d] an ‘investment contract,’” id. at 297 (bracketed material added), defined\\n\\nas “a contract, transaction or scheme whereby a person invests his money in a\\n\\n\\n\\n\\n7\\n Although the 1933 and 1934 Acts use “slightly different formulations” for defining\\na “security,” the Supreme Court has, nevertheless treated those formulations “as\\nessentially identical in meaning.” SEC v. Edwards, 540 U.S. 389, 393 (2004).\\n 26\\n\\fcommon enterprise and is led to expect profits solely from the efforts of the promoter\\n\\nor a third party.” Id. at 298-99; see also id. at 297-301.\\n\\n “[T]o distinguish an investment contract from other commercial dealings, the\\n\\nHowey test has subsequently been broken down into three requirements: (1) an\\n\\ninvestment, (2) in a common enterprise, (3) with a reasonable expectation of profits\\n\\nto be derived from the entrepreneurial or managerial efforts of others.” Shields, 744\\n\\nF.3d at 643 n.7 (internal quotation marks omitted). In addressing the legal question\\n\\nof whether some transaction qualifies as an “investment contract,” see Thompson,\\n\\n732 F.3d at 1161, we disregard form over substance and focus on the “‘economic\\n\\nrealities underlying a transaction, and not on the name appended thereto.’” Shields,\\n\\n744 F.3d at 643 (quoting United Housing Found’n, Inc. v. Forman, 421 U.S. 837, 849\\n\\n(1975)). Here, Scoville contends—unsuccessfully—that the SEC failed to make an\\n\\nadequate showing as to any of the three Howey requirements and, therefore, the\\n\\ndistrict court erred in treating Adpacks as “investment contracts” subject to federal\\n\\nsecurities regulation.\\n\\n 1. An Adpack qualifies as an investment\\n\\n An Adpack is an “investment.” Just as the citrus grove owner in Howey was\\n\\n“offering something more than fee simple interests in land, something different from\\n\\na farm or orchard coupled with management services,” 328 U.S. at 299, so, too,\\n\\nTraffic Monsoon was offering its Adpack purchasers something more than just\\n\\nadvertising services. Adpacks also offered the purchaser an opportunity to share in\\n\\nTraffic Monsoon’s revenue. Just as the land purchasers in Howey “had no desire to\\n\\n 27\\n\\foccupy the[ir] land or to develop it themselves” but were instead “attracted solely by\\n\\nthe prospects of a return on their investment,” id. At 300, so too the vast majority of\\n\\n$50 Adpack purchasers bought Adpacks, not to receive the same advertising services\\n\\nthey could have bought ala carte for $10.95, but instead to have the opportunity to\\n\\nshare in Traffic Monsoon’s revenue and earn significant returns. We agree with the\\n\\ndistrict court that\\n\\n [t]he evidence clearly points to the fact that Traffic Monsoon’s explosive\\n growth was driven by members purchasing and repurchasing Adpacks in\\n order to obtain the incredible returns on their investment, not by intense\\n demand for Traffic Monsoon’s [internet advertising] services. Indeed,\\n many Adpack purchasers had no interest in the website visits Traffic\\n Monsoon offered, and Traffic Monsoon only ever delivered a fraction of\\n the clicks it promised to deliver. In short, the economic reality of the\\n Adpack purchases is that they were investments.\\n\\n(Aplt. App. 2103 (bracketed material added).)\\n\\n Neither the fact that a few Adpack purchasers testified that they bought\\n\\nAdpacks for the advertising services, nor the fact that not every Adpack purchaser\\n\\nqualified to share revenue (although almost all of them did), prevents us from\\n\\ncharacterizing Adpacks as investments. See Howey, 328 U.S. at 300-01 (holding, in\\n\\nthe context of § 10(b), that Court’s conclusion that land sales and service contracts\\n\\namounted to an “investment contract” was “unaffected by the fact that some\\n\\npurchasers choose not to accept the full offer of an investment contract by declining\\n\\nto enter into a service contract with the” citrus grove owner).\\n\\n\\n\\n\\n 28\\n\\f 2. An Adpack involves a common enterprise\\n\\n An Adpack is an investment in “a common enterprise.” Just as the land\\n\\npurchasers in Howey bought the opportunity “to share in the profits of a large citrus\\n\\nfruit enterprise managed and partly owned by” the citrus grove owners, 328 U.S. at\\n\\n299, so Adpack purchasers bought the opportunity to share in revenue derived from\\n\\nthe sale of all of Traffic Monsoon’s advertising services. The revenue in which\\n\\nAdpack purchasers could share, then, was generated from a common enterprise,\\n\\nTraffic Monsoon’s sale of internet advertising services.\\n\\n 3. An Adpack provides members with a reasonable expectation of profit\\n derived from the entrepreneurial or management efforts of others\\n\\n Howey’s third requirement for an investment contract is that the investor “is\\n\\nled to expect profits solely from the efforts of the promoter or a third party.” 328\\n\\nU.S. at 298-99; see also Shields, 744 F.3d at 643 n.7 (applying this part of Howey’s\\n\\ninquiry to require that the consumer have “a reasonable expectation of profits to be\\n\\nderived from the entrepreneurial or managerial efforts of others” (internal quotation\\n\\nmarks omitted)).\\n\\n Scoville points out that, although the revenue Adpack purchasers share is\\n\\nderived from Defendants’ efforts to sell Traffic Monsoon’s advertising services, the\\n\\nreturns Adpack purchasers earn are also the result of purchasers’ own efforts in\\n\\nclicking on other members’ websites in order to qualify to share revenue. Although\\n\\nthe Supreme Court, in Howey, stated that the profits expected from an “investment\\n\\ncontract” should result “solely” from others’ efforts, 328 U.S. at 301, the Tenth\\n\\n\\n 29\\n\\fCircuit has held that “[i]nvestments satisfy the third prong of the Howey test when\\n\\nthe efforts made by those other than the investor are the ones which affect\\n\\nsignificantly the success or failure of the enterprise.” Shields, 744 F.3d at 645\\n\\n(internal quotation marks omitted); see also Crowley v. Montgomery Ward & Co.,\\n\\n570 F.2d 875, 877 (10th Cir. 1975).\\n\\n That is the case here. Adpack purchasers expected Traffic Monsoon’s success\\n\\nto turn “significantly” on the company’s efforts to sell its advertising services. See\\n\\ngenerally Miller v. Cent. Chinchilla Grp., Inc., 494 F.2d 414, 417 (8th Cir. 1974) (“In\\n\\ndetermining whether the plaintiffs’ contributions were nominal or significant, the\\n\\nissue is not what efforts, in fact, were required of them. Rather, it is what efforts the\\n\\nplaintiffs were reasonably led to believe were required of them at the time they\\n\\nentered into the contracts.”). Assuming Adpack purchasers expected to contribute to\\n\\nsome degree in the delivery of those services by clicking on other members’\\n\\nwebsites, Adpack purchasers did not expect their own efforts to be significant. No\\n\\nmatter how many Adpacks a member owned, the member expected to qualify to share\\n\\nrevenue on all of his or her Adpacks by spending only four minutes a day clicking on\\n\\nup to fifty ads. Moreover, there is evidence that receiving clicks on one’s website or\\n\\ninternet ad was not the motivation for the vast majority of Adpack purchasers;\\n\\nearning a 10% return on their investment was.\\n\\n Scoville further argues that Adpacks cannot be “investment contracts” because\\n\\nthere was never a “guarantee” that qualified Adpack purchasers would receive a share\\n\\nof Traffic Monsoon’s revenue because Traffic Monsoon’s obligation to share its\\n\\n 30\\n\\frevenue was contingent on there being revenue to share. But neither were the citrus\\n\\ngrove purchasers in Howey guaranteed a return on their investment in the citrus crop.\\n\\n328 U.S. at 296. So long as a transaction satisfies Howey’s test for an “investment\\n\\ncontract,” “it is immaterial whether the enterprise is speculative or non-speculative.”\\n\\nId. at 301. To qualify as an “investment contract,” the purchaser just has to have a\\n\\n“reasonable expectation of profits.” Shields, 744 F.3d at 642 n.7, 643; see, e.g.,\\n\\nEdwards, 540 U.S. at 395; see also SEC v. Int’l Loan Network, Inc. 968 F.2d 1304,\\n\\n1308 (D.C. Cir. 1992) (rejecting argument that investment program could not be an\\n\\n“investment contract” because no return was guaranteed; stating that “[v]ery few\\n\\ninvestments ‘guarantee’ a return—all that Howey requires is a ‘reasonable\\n\\nexpectation of profits’” (quoting Forman, 421 U.S. at 852)). The evidence here\\n\\nsupported Adpack purchasers’ reasonable expectation—based on the representations\\n\\nmade to them—of sharing Traffic Monsoon’s revenue. Although Traffic Monsoon’s\\n\\nwebsite stated there was no guarantee that there would always be revenue for\\n\\nqualifying members to share, it does not appear that there was ever a time, before the\\n\\nPayPal freeze, when a qualifying member did not receive purported shared revenue.\\n\\n 4. Conclusion: Adpacks qualify as investment contracts\\n\\n For these reasons, then, the district court did not err in concluding that\\n\\nAdpacks meet Howey’s three-part test and, therefore, qualify as “investment\\n\\ncontracts” and, thus, as securities subject to regulation under the federal securities\\n\\nlaws.\\n\\n\\n\\n 31\\n\\fC. It is likely that the SEC can prove that Defendants’ conduct violated the\\nantifraud provisions of federal securities laws\\n\\n Scoville asserts that the district court abused its discretion in determining that\\n\\nthe SEC can likely establish that Defendants violated the antifraud statutes. Scoville\\n\\ntakes aim at two requisite elements of Defendants’ liability.\\n\\n 1. Defendants were operating a Ponzi scheme\\n\\n The antifraud statutes apply to fraudulent schemes involving securities.8 The\\n\\ndistrict court held that the SEC will likely succeed in proving that Defendants were\\n\\ninvolved in such a fraudulent scheme because Defendants were operating a Ponzi\\n\\nscheme, which is “inherently deceptive because it generates a false appearance of\\n\\nprofitability by using money from new investors to generate returns for earlier\\n\\ninvestors.” (Aplt. App. 2099 (citing Mukamal v. Gen. Elec. Capital Corp. (In re\\n\\nPalm Beach Fin. Partners, L.P.), 517 B.R. 310, 346 (Bankr. S.D. Fla. 2013)).)\\n\\n Scoville counters that the SEC cannot prove that Defendants were operating a\\n\\nPonzi scheme. But there is strong evidence that that is exactly what Defendants were\\n\\ndoing.\\n\\n\\n8\\n More precisely, § 17(a)(1) prohibits “any device, scheme, or artifice to defraud” in\\n“the offer or sale of any securities.” 15 U.S.C. § 77q(a)(1). Section 17(a)(3) also\\napplies to “the offer or sale of any securities,” and prohibits “engag[ing] in any\\ntransaction, practice, or course of business which operates or would operate as a\\nfraud or deceit upon the purchaser.” Id. § 77q(a)(3). Section 10(b) addresses the use\\nof “any manipulative or deceptive device or contrivance” “in connection with the\\npurchase or sale of any security.” Id. § 78j(b). SEC Rule 10b-5(a) and (c) apply “in\\nconnection with the purchase or sale of any security,” and prohibit using “any device,\\nscheme, or artifice to defraud,” and “engag[ing] in any act, practice, or course of\\nbusiness which operates or would operate as a fraud or deceit upon any person.” 17\\nC.F.R. § 240.10b-5(a), (c).\\n 32\\n\\f The Tenth Circuit has offered several different definitions of a Ponzi scheme,\\n\\nbut the district court captured the gist of those definitions in noting that “the central\\n\\ncharacteristic of a Ponzi scheme is that returns are not based upon any underlying\\n\\nbusiness activity. Instead, money from new investors is used to pay earlier\\n\\ninvestors.” (Aplt. App. 2097.) See Thompson, 732 F.3d at 1154 n.3; Wilcox, 691\\n\\nF.3d at 1173 n.2. In addition, in a Ponzi scheme often the “money contributed by\\n\\nlater investors generates artificially high dividends for the original investors, whose\\n\\nexample attracts even larger investments.” Wilcox, 691 F.3d at 1173 n.2.\\n\\n The district court did not abuse its discretion in determining that the SEC is\\n\\nlikely to prove Defendants were operating a Ponzi scheme. For every $50 Adpack it\\n\\nsold, Traffic Monsoon often had to pay out $55 to qualifying purchasers, and even\\n\\n$60 if the purchaser had been recruited by another Traffic Monsoon member. Traffic\\n\\nMonsoon paid these amounts from sales of new Adpacks; there was essentially no\\n\\nother business activity generating the revenue Traffic Monsoon was sharing with\\n\\nqualifying Adpack purchasers. Furthermore, Traffic Monsoon misrepresented to its\\n\\nAdpack purchasers that the revenue it was sharing came from sales of all of Traffic\\n\\nMonsoon’s other advertising services, which Traffic Monsoon falsely indicated were\\n\\nmore popular than its Adpacks. Thus, the record evidence would support finding that\\n\\nDefendants were offering the possibility of high rates of return on qualifying\\n\\nAdpacks and paying those returns using money from later Adpack sales. In light of\\n\\nthis evidence, it was likely the SEC will be able to show that Defendants were\\n\\n\\n\\n 33\\n\\foperating a Ponzi scheme and thus, be able to prove that Defendants used fraud or\\n\\ndeception to sell, or offer to sell, Adpacks.\\n\\n Scoville’s arguments to the contrary are unavailing. For example, although he\\n\\nreasserts his argument that Traffic Monsoon was only selling advertising services, as\\n\\npreviously discussed, the vast majority of Adpack purchasers were not seeking to buy\\n\\ninternet advertising services but were, instead, seeking a significant return on their\\n\\n$50-per-Adpack investment. Moreover, Defendants may still be operating a Ponzi\\n\\nscheme even if they have “some legitimate business operations.” Gillman v. Geis (In\\n\\nre Twin Peaks Fin. Servs., Inc.), 516 B.R. 651, 655 (Bankr. D. Utah 2014); see also\\n\\nMiller v. Wulf, 84 F. Supp. 3d 1266, 1272 & n.45 (D. Utah 2015).\\n\\n Neither does Scoville’s assertion—that before an Adpack purchaser could\\n\\nshare in Traffic Monsoon’s revenue, he had to qualify by clicking on other members’\\n\\nwebsites for four minutes on a given day and then there had to be revenue Traffic\\n\\nMonsoon generated in the preceding twenty-four hours—prevent the district court’s\\n\\ndetermination that Defendants were running a Ponzi scheme. Even though\\n\\nDefendants disclosed these requisite conditions for an Adpack purchaser to share in\\n\\nTraffic Monsoon’s revenue, there is evidence that Defendants deceived purchasers by\\n\\ntelling them that the revenue to be shared was generated by Traffic Monsoon’s other\\n\\n\\n\\n\\n 34\\n\\fadvertising services that were more popular than Adpacks. Instead, essentially all of\\n\\nthe revenue to be shared was generated by the sale of additional Adpacks.9\\n\\n Lastly, Scoville argues that Defendants did not expressly limit returns on\\n\\nAdpacks only to the original purchasers. And he contends that none of its members\\n\\nhad ever suffered a loss. But the fact that this Ponzi scheme had not yet imploded\\n\\ndoes not mean Defendants were not running a Ponzi scheme.\\n\\n 2. Scienter\\n\\n In a related argument, Scoville next asserts that the SEC will not be able to\\n\\nestablish that Defendants acted with the requisite scienter. We disagree.\\n\\n Sections 10(b) and 17(a)(1) require proof that Defendants acted with the\\n\\n“intent to deceive, manipulate, or defraud.” Aaron v. SEC, 446 U.S. 680, 686 & n.5,\\n\\n695-97 (1980) (quoting Ernst & Ernst v. Hochfelder, 425 U.S 185, 194 & n.12\\n\\n(1976)). (No scienter is required under § 17(a)(3). See Aaron, 446 U.S. at 695-96.)\\n\\nThe district court correctly held that this scienter is likely established in this case by\\n\\nthe fact that Defendants were operating a Ponzi scheme, which again is “inherently\\n\\ndeceptive because it generates a false appearance of profitability by using money\\n\\nfrom new investors to generate returns for earlier investors.” (Aplt. App. 2099\\n\\n(citing In re Palm Beach Fin. Partners, 517 B.R. at 346).).10\\n\\n\\n9\\n In light of this crucial deception, we reject, at this point in the case, Scoville’s\\nassertion that Defendants were not operating a Ponzi scheme because “Traffic\\nMonsoon has fully disclosed everything to its members.” (Aplt. Br. 52.)\\n10\\n Scoville incorrectly asserts that the district court never addressed Defendants’\\nscienter.\\n 35\\n\\fD. Traffic Monsoon’s revenue generated from the sale of its other advertising\\nservices is properly subject to the district court’s preliminary orders\\n\\n Lastly, Scoville asserts that, “[a]t a minimum, the Court should order the\\n\\nDistrict Court to release the [currently frozen] Traffic Monsoon funds that are\\n\\nadmittedly outside the scope of any of the SEC’s claims.” (Aplt. Br. 53 (bracketed\\n\\nmaterial added).) Scoville refers to the approximately $3 million that Traffic\\n\\nMonsoon earned from September 2014 through July 2016 from the sale of its internet\\n\\nadvertising services other than Adpacks. But it is not clear, as Scoville asserts, that\\n\\nthese other sales are “outside the scope of any of the SEC’s claims.” Id. The\\n\\nrevenue to be shared with qualifying Adpack purchasers was generated from the sale\\n\\nof all of Traffic Monsoon’s advertising services. Further, Traffic Monsoon had no\\n\\naccounting records; its revenue apparently was pooled together and Adpack\\n\\npurchasers were paid from that pool. In light of this evidence, Scoville has not\\n\\nshown that the district court abused its discretion in preliminarily freezing all of\\n\\nTraffic Monsoon’s funds and placing them in the receivership.11\\n\\n V. CONCLUSION\\n\\n For the foregoing reasons, we AFFIRM in all respects the district court’s\\n\\nchallenged preliminary decisions in this civil enforcement action. Although early in\\n\\n\\n\\n\\n11\\n The issue of whether Scoville should personally be liable under the antifraud\\nprovisions has not been adequately raised before us, nor adequately preserved below.\\nAccordingly, we decline to address that issue.\\n 36\\n\\fthis civil enforcement action, the SEC has established the likelihood that it will\\n\\nsucceed on its antifraud claims against Defendants.12\\n\\n\\n\\n\\n12\\n Once our mandate has issued, the Court will direct the parties to address the status\\nof the related appeal, No. 18-4038.\\n 37\\n\\f17-4059, SEC v. Traffic Monsoon LLC\", \"author\": \"EBEL, Circuit Judge.\"}, {\"type\": \"concurrence\", \"author\": \"BRISCOE\", \"text\": \"BRISCOE, J., concurring.\\n\\n I concur in the judgment. I agree with the majority that AdPacks are “securities”\\n\\nwithin the meaning of the 1933 and 1934 securities acts, Maj. Op. 24–31, that Scoville\\n\\ndid not adequately preserve the personal liability issue, id. at 35 n.11, and that the SEC is\\n\\nlikely to prove that the Defendants’ conduct violated the antifraud provisions of the\\n\\nsecurities acts and their accompanying regulations, id. at 31–35. I am not persuaded,\\n\\nhowever, as the majority appears to assume, that the AdPack sales at issue were foreign\\n\\nsales outside of the United States. Absent that assumption there would be no need to\\n\\naddress in this case whether the antifraud provisions of the securities acts apply\\n\\nextraterritorially. I write separately to endorse the ruling of the district court, Aplt. App.\\n\\nat 2091–94, and as also advanced by the SEC on appeal, Resp. Br. 52–57, that under\\n\\nMorrison v. Nat’l Australian Bank Ltd., 561 U.S. 247 (2010), Traffic Monsoon sold\\n\\nAdPacks in the United States. Therefore, the securities acts and their accompanying\\n\\nregulations cover the Defendants’ domestic activity even if a large percentage of the\\n\\nAdPack buyers purchased the securities while abroad.\\n\\n As explained by the majority, the Supreme Court has developed a two-step test to\\n\\ndetermine questions of extraterritoriality. WesternGeco LLC v. ION Geophysical Corp.,\\n\\n138 S. Ct. 2129, 2136 (2018). We have discretion to begin the analysis at step one or two,\\n\\nid. at 2136–37, and if either step is satisfied then the statute applies to the challenged\\n\\nconduct, see id. at 2136. I would resolve this case at step two.\\n\\f “Under the second step of [the] framework, we must identify the statute’s focus,”\\n\\nWesternGeco, 138 S. Ct. at 2137 (citing RJR Nabisco, Inc. v. European Cmty., 136 S. Ct.\\n\\n2090, 2101 (2016)) (internal quotation marks omitted), and the Supreme Court has\\n\\nclarified that “the focus of the Exchange Act is . . . upon purchases and sales of securities\\n\\nin the United States,” Morrison, 561 U.S. at 266. Morrison provides the test for liability\\n\\nunder § 10(b). As Morrison explains, based on the text of § 10(b),1 we ask “whether the\\n\\npurchase or sale [of the security] [wa]s made in the United States, or involve[d] a security\\n\\nlisted on a domestic exchange.” 561 U.S. at 269–70 (emphasis added). Since AdPacks\\n\\nwere not listed on a domestic exchange, we must decide if either the “purchase[s]” or the\\n\\n“sale[s]” were “made in the United States.”\\n\\n The Second, Third, and Ninth Circuits have adopted the “irrevocable liability” test\\n\\nto determine where a security “sale” or “purchase” occurs under Morrison and § 10(b).\\n\\nSee Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60, 67 (2d Cir. 2012)\\n\\n(“[W]e hold that transactions involving securities that are not traded on a domestic\\n\\nexchange are domestic if irrevocable liability is incurred or title passes within the United\\n\\nStates.”); see also Stoyas v. Toshiba Corp., 896 F.3d 933, 949 (9th Cir. 2018), petition for\\n\\n\\n1\\n Section 10(b) makes it unlawful\\n\\n [t]o use or employ, in connection with the purchase or sale of any security\\n registered on a national securities exchange or any security not so registered\\n . . . any manipulative or deceptive device or contrivance in contravention of\\n such rules and regulations as the Commission may prescribe as necessary or\\n appropriate in the public interest or for the protection of investors.\\n\\n15 U.S.C. § 78j(b) (emphasis added).\\n\\n 2\\n\\fcert. filed, (U.S. Oct. 17, 2018) (No. 18-486); United States v. Georgiou, 777 F.3d. 125,\\n\\n137 (3d Cir. 2015). As the Second Circuit has explained, a domestic transaction occurs\\n\\nwhen “the purchaser incur[s] irrevocable liability within the United States to take and pay\\n\\nfor a security, or [when] the seller incur[s] irrevocable liability within the United States to\\n\\ndeliver a security.” Absolute Activist, 677 F.3d at 68. While “irrevocable liability” may\\n\\nappear to turn on contract principles and “the location of the securities transactions at\\n\\nissue,” see id. at 70 (emphasis added), the Second Circuit later clarified that “territoriality\\n\\nunder Morrison concerns where, physically, the purchaser or seller committed him or\\n\\nherself, not where, as a matter of law, a contract is said to have been executed.” United\\n\\nStates v. Vilar, 729 F.3d 62, 77 n.11 (2d Cir. 2013) (citing Morrison, 561 U.S. at 268). It\\n\\nappears, then, that the irrevocable liability test is a fact intensive inquiry to determine\\n\\nwhether a “sale” or “purchase” of “any security not so registered” occurred in the United\\n\\nStates.\\n\\n In this case, Traffic Monsoon was based in the United States and operated out of\\n\\nthe United States when selling its securities. As found by the district court, Scoville\\n\\nregistered Traffic Monsoon with the State of Utah as a limited liability company. Scoville\\n\\nfiled organizational documents with the State of Utah which identified Scoville as Traffic\\n\\nMonsoon’s sole member, manager, and registered agent. Scoville listed his apartment’s\\n\\naddress in Murray, Utah, as Traffic Monsoon’s corporate address. Traffic Monsoon sold\\n\\nAdPacks via the internet, and the record further demonstrates that Traffic Monsoon made\\n\\nits sales through computer servers based solely in the United States. Under any common\\n\\nsense reading of Morrison and § 10(b), Traffic Monsoon made several securities sales in\\n\\n 3\\n\\fthe United States. That many AdPack buyers were abroad when they purchased the\\n\\nsecurities over the internet does not alter this conclusion. Neither does Scoville’s\\n\\nargument that he was in the United Kingdom for a period while Traffic Monsoon sold\\n\\nAdPacks since Traffic Monsoon executed all the AdPack sales in an automated manner in\\n\\nthe United States.\\n\\n The analysis under § 17(a) is similar. Section 17(a) makes it “unlawful for any\\n\\nperson in the offer or sale of any securities . . . to employ any device, scheme, or artifice\\n\\nto defraud, or . . . to engage in any transaction, practice, or course of business which\\n\\noperates or would operate as a fraud or deceit upon the purchaser.” 15 U.S.C. § 77q(a)(1),\\n\\n(3) (emphasis added). Under the same reasoning illustrated above, Traffic Monsoon made\\n\\n“sale[s]” or “offer[s]” of “securities” in the United States within the meaning of § 17(a).\\n\\n Accordingly, I would affirm because, as explained by the district court, the SEC\\n\\nsufficiently established that the Defendants sold securities in the United States in\\n\\nviolation of the securities acts and their accompanying regulations.\\n\\n\\n\\n\\n 4\"}]}"},"judge1":{"kind":"string","value":"BRISCOE"},"judge2":{"kind":"string","value":"EBEL"},"judge3":{"kind":"string","value":"HARTZ"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":4,"string":"4"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":2,"string":"2"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4584359/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":1,"string":"1"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: SECURITIES AND EXCHANGE COMMISSION, Plaintiff - Appellee, v. Charles D. SCOVILLE, Defendant - Appellant, and Traffic Monsoon, LLC, Defendant. Peggy Hunt, Receiver - Amicus Curiae.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-24\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 24, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n SECURITIES AND EXCHANGE\n COMMISSION,\n\n Plaintiff - Appellee,\n\n v. No. 17-4059\n\n CHARLES D. SCOVILLE,\n\n Defendant - Appellant,\n\n and\n\n TRAFFIC MONSOON, LLC,\n\n Defendant.\n ____________________________\n\n PEGGY HUNT,\n\n Receiver - Amicus Curiae.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Utah\n (D.C. No. 2:16-CV-00832-JNP)\n _________________________________\n\nD. Loren Washburn (Micah S. Echols and Tom W. Stewart, Marquis Aurbach Coffing,\nLas Vegas, Nevada, with him on the briefs), Smith Correll, LLP, Salt Lake City, Utah for\nDefendants-Appellants.\n\nWilliam K. Shirey (Robert B. Stebbins, General Counsel, Michael A. Conley, Solicitor,\nwith him on the briefs), Counsel to the Solicitor, Securities and Exchange Commission,\nWashington, D.C., for Plaintiff-Appellee.\n\fPeggy Hunt, Michael F. Thomson, and John J. Weist, Dorsey & Whitney LLP, filed a\nbrief for Receiver-Amicus Curiae Peggy Hunt, in support of Plaintiff-Appellee.\n _________________________________\n\nBefore BRISCOE, EBEL, and HARTZ, Circuit Judges.\n _________________________________\n\nEBEL, Circuit Judge.\n _________________________________\n\n This case involves an alleged worldwide Ponzi scheme and the antifraud\n\nprovisions of the federal Securities Act of 1933 and the Securities Exchange Act of\n\n1934. Defendant Charles Scoville operated an internet traffic exchange business\n\nthrough his Utah company, Defendant Traffic Monsoon, LLC. The Securities and\n\nExchange Commission (“SEC”) initiated this civil enforcement action, alleging\n\nDefendants were instead operating an unlawful online Ponzi scheme involving the\n\nfraudulent sale of securities. In this interlocutory appeal, Scoville challenges several\n\npreliminary orders the district court issued at the outset of this still ongoing\n\nenforcement action, including orders freezing Defendants’ assets, appointing a\n\nreceiver, and preliminarily enjoining Defendants from continuing to operate their\n\nbusiness.\n\n In upholding these preliminary rulings, we conclude first that the antifraud\n\nprovisions of the federal securities laws reach Traffic Monsoon’s sales to customers\n\noutside the United States because, applying the conduct-and-effects test added to the\n\nfederal securities laws by the 2010 Dodd-Frank Act, Traffic Monsoon undertook\n\nsignificant conduct in the United States to make those sales to persons abroad. We\n\nfurther conclude that Traffic Monsoon’s Adpacks (bundled internet advertising\n\n 2\n\fservices that allowed a purchaser to share in some of Traffic Monsoon’s revenue)\n\nqualified as investment contracts, which are securities regulated under the 1933 and\n\n1934 securities acts. We further conclude that the SEC has asserted sufficient\n\nevidence to make it likely that the SEC will be able to prove that Defendants were\n\noperating a fraudulent scheme—a Ponzi scheme—selling Adpacks and that scheme\n\nviolated the antifraud statutes invoked in this litigation. Having jurisdiction under 28\n\nU.S.C. § 1292(a)(1) and (2), we, therefore, AFFIRM the district court’s challenged\n\npreliminary orders.\n\n I. BACKGROUND\n\n The parties have very different versions of Traffic Monsoon’s business model.\n\nAccording to the SEC, Traffic Monsoon was operating a Ponzi scheme; that is, a\n\nfraudulent scheme in which the business pays returns to its investors that are\n\nfinanced, not by the success of the business, but instead with money acquired from\n\nlater investors. See S.E.C. v. Thompson, 732 F.3d 1151, 1154 n.3 (10th Cir. 2013);\n\nOkla. Dep’t of Sec. ex rel. Faught v. Wilcox, 691 F.3d 1171, 1173 n.2 (10th Cir.\n\n2012).\n\n Scoville claims, instead, that Traffic Monsoon is a legitimate internet traffic\n\nexchange offering internet advertising services. Such a business is based on the fact\n\nthat internet search engines such as Google use algorithms that rank more frequently\n\nvisited websites higher than less frequently visited websites. In light of this, website\n\ntraffic exchange businesses sell visits to a purchaser’s website in order to make that\n\n\n\n 3\n\fwebsite look more popular than it really is. Scoville operated several other website\n\ntraffic exchanges before starting Traffic Monsoon in September 2014.\n\n Scoville is the sole member, manager and registered agent of Traffic Monsoon,\n\na Utah limited liability company. Scoville is also Traffic Monsoon’s sole employee,\n\nrunning the business from his Utah apartment. The company contracts with a\n\nRussian computer programmer and several call centers hired to respond to telephone\n\ninquiries from Traffic Monsoon’s customers.\n\n Scoville operated Traffic Monsoon through a website,\n\nwww.trafficmonsoon.com, which was housed on servers physically located in the\n\nUnited States. Someone wanting to do business with Traffic Monsoon first had to\n\nbecome a member by going to the website and creating an account. The member\n\ncould then purchase through the website several different advertising services. For\n\nexample, for $5, a member could purchase twenty clicks on the member’s online\n\nadvertisement, and for $5.95 a member could purchase 1,000 visits to his website.\n\n Alternatively, instead of purchasing these services “ala carte,” a member could\n\npurchase an Adpack for $50. A single Adpack entitled a member to receive 1,000\n\nvisits to his website and twenty clicks on his internet ad (a $10.95 value), plus the\n\nopportunity to share in Traffic Monsoon’s revenue up to a maximum amount of $55.\n\nAn Adpack purchaser qualified to share in Traffic Monsoon’s revenue for each day\n\nthat the purchaser clicked on ten (later fifty1) internet ads for other Traffic Monsoon\n\n\n1\n For most of the time Traffic Monsoon was operating, Adpack purchasers only had\nto click on ten ads each day to qualify for revenue sharing. In the last month of its\n 4\n\fmembers’ websites and remained on the ad’s landing page for five seconds. In this\n\nway, Scoville gave Adpack purchasers an incentive to provide some of the\n\nadvertising traffic that Traffic Monsoon was selling to its members.\n\n Traffic Monsoon made it easy for members to complete their daily qualifying\n\nadvertising clicks. When an Adpack purchaser logged onto his account, Traffic\n\nMonsoon would present rotating ads on which the member could click.\n\n The [member] is required to view each banner ad for only 5 seconds,\n and a counter appears that counts down the 5 seconds for [the member].\n At the end of that time the [member] must click on an image that\n appears, to verify that he is human, and then the next banner ad appears\n automatically. The act of completing the 50 clicks takes the [member]\n 4.1 minutes per day.\n\n(Aplt. App. at 18-19 ¶ 31 (bracketed material added).)\n\n Each day that the Adpack purchaser completed the requisite number of clicks,\n\nthe purchaser qualified to share in Traffic Monsoon’s revenue earned during the\n\npreceding twenty-four hours. Ninety-nine percent of Adpack purchasers qualified to\n\nshare in at least some of Traffic Monsoon’s revenue. But “neither the website nor\n\nany other publicly available source of information informed the members how Traffic\n\nMonsoon split the revenue between itself and qualified Adpack holders.” (Id. 2068\n\n¶ 14.) Furthermore, because Traffic Monsoon “kept no accounting records[,] . . .\n\nthere are no readily available documents that describe precisely how the money was\n\ndistributed.” (Id. 2067 ¶ 13.) Typically an Adpack purchaser would earn $1 in\n\n\n\noperation, however, Traffic Monsoon increased this requirement to fifty clicks per\nday.\n 5\n\fshared revenue for each day that he made the requisite number of qualifying clicks.\n\nThat meant that in approximately fifty-five days an Adpack purchaser could reach the\n\nmaximum $55 return, recouping the $50 the member originally paid for the Adpack\n\nplus earning an additional $5 (a 10% return over the fifty-five days). When an\n\nAdpack purchaser reached the maximum $55 limit in revenue sharing, that member\n\ncould either use that money to purchase another $50 Adpack, or he could withdraw\n\nsome or all of his money.\n\n A member could buy as many $50 Adpacks as he wanted; some members\n\nowned hundreds or even thousands of Adpacks. Significantly, no matter how many\n\nAdpacks a member purchased, the member could qualify to share in Traffic\n\nMonsoon’s revenue on all of those Adpacks through a single four-minute session\n\nclicking on other members’ ads. So, for example, if a member bought 100 Adpacks\n\nfor $5,000 and spent just four minutes a day for fifty-five days clicking on other\n\nTraffic Monsoon members’ ads, the Adpack purchaser would earn back the original\n\n$5,000 he paid for all 100 Adpacks plus an additional 10% return of $500. If a\n\nmember consistently rolled over his Adpacks every fifty-five days, instead of cashing\n\nout, he would earn a 66% annual return on his original $50 purchase and in a year he\n\nwould have 166 Adpacks. In three years, he could earn “$25,080—over five times\n\nthe initial [$5,000] investment.” (Id. 2073-74 ¶ 30.)\n\n A second way a Traffic Monsoon member could earn money was to recruit\n\nother members. The recruiting member would earn a 10% commission on every\n\nadvertising service the recruited member purchased. This included Adpacks the\n\n 6\n\frecruit purchased, both with new money and by rolling over earnings from prior\n\nAdpacks. The district court noted that “for all $50 Adpacks that were purchased by a\n\nreferred member, Traffic Monsoon typically deposited $60 worth of credits in\n\nmember accounts: $55 into the purchasing member’s account over a 55-day period\n\n(so long as the member qualified [to share revenue]) and $5 into the referring\n\nmember’s account.” (Id. 2068-69 ¶ 17.)\n\n The district court found that, while “[s]ome individuals initially purchased\n\nAdpacks principally as a way to promote their online businesses[,] . . . for many\n\nmembers, the profits that could be reaped from the Adpacks themselves quickly\n\neclipsed this motive.” (Id. 2071 ¶ 23.) “Indeed, many members have not received or\n\nused the web visits and banner clicks purchased in the Adpack” (id. 2072 ¶ 24),\n\nbecause Traffic Monsoon only delivered about 10% of the clicks and website visits it\n\nsold as part of the Adpacks.\n\n Before buying an Adpack, the member had to agree with Traffic Monson that\n\nthe Adpack was not an “investment” and that Traffic Monsoon’s “past performance\n\ndoes not guarantee [the purchaser] the same result in the future.” (Id. 2069 ¶ 18\n\n(internal quotation marks omitted).) Traffic Monsoon’s website also included a\n\nlengthy explanation to its members as to why it was not operating a Ponzi scheme.\n\nThe website further stated that the revenue Traffic Monsoon shared with its\n\nqualifying members was earned from the sale of all of its services, and not just\n\nAdpacks. But the website did not explain that Adpacks actually made up more than\n\n\n\n 7\n\f98% of Traffic Monsoon’s sales. In fact, Traffic Monsoon misrepresented that its\n\nother advertising services were more popular than Adpacks.\n\n Adpacks became enormously popular. Between October 2014 and July 2016,\n\nwhen the SEC initiated this civil enforcement action, members paid Traffic Monsoon\n\n$173 million in new money to purchase 3.4 million Adpacks and purchased\n\napproximately 14 million additional Adpacks—for $700 million—by rolling over\n\nmoney earned from earlier Adpacks. During this same time period, members paid\n\nonly $2.9 million for all other Traffic Monsoon advertising services. Of the total\n\namount of $175.9 million in cash Traffic Monsoon took in over this period, it\n\ndistributed approximately $88 million to its members, “leaving a difference of $87.4\n\nmillion between what has been paid in by members and what they have taken out.”\n\n(Id. 2074 ¶ 32.)\n\n Ninety percent of Adpacks were purchased by people who live outside the\n\nUnited States. Adpacks were especially popular in poorer countries, including\n\nBangladesh, Venezuela, and Morocco.\n\n “A large majority of the financial transactions the members completed with\n\nTraffic Monsoon—both payments made to Traffic Monsoon and withdrawals from\n\nthe member’s [sic] account—were conducted through PayPal.” (Id. 2066 ¶ 6.) In\n\nJanuary 2016, because “PayPal became concerned about the enormous growth in the\n\nvolume of transactions between Traffic Monsoon and its members,” PayPal “froze\n\nTraffic Monsoon’s account.” (Id. 2074 ¶ 33.) Traffic Monsoon then began using\n\nother electronic payment processors. The PayPal freeze lasted until July 11, 2016.\n\n 8\n\fThe SEC brought this enforcement action two weeks later. During those interim two\n\nweeks, Scoville withdrew $23 million from Traffic Monsoon’s PayPal accounts, in\n\nincrements of $100,000, which is the maximum withdrawal PayPal allows at one\n\ntime. Scoville tried to withdraw another $10 million, but PayPal reversed those\n\ntransactions.\n\n “The receiver currently has between $50-$60 million in frozen Traffic\n\nMonsoon assets” (id. 2075 ¶ 37), and “[t]he current combined account balance of\n\nTraffic Monsoon members is $34.2 million” (id. 2075 ¶ 36). But members “typically\n\nhad relatively little money in their account because the members would continually\n\nreinvest it by purchasing new Adpacks.” (Id. 2072 ¶ 27.) “If the outstanding\n\nAdpacks currently owned by Traffic Monsoon members had matured, the [members’]\n\naccount balance would” have increased from $34 million to $278.1 million.” (Id.\n\n2075 ¶ 36.)\n\n II. THIS SEC ENFORCEMENT ACTION\n\n The SEC initiated this civil enforcement action on July 26, 2016, invoking the\n\ndistrict court’s jurisdiction under 15 U.S.C. §§ 77t, 77v, 78u, and 78aa. Relevant to\n\nthis appeal, the SEC contends that Defendants violated § 17(a)(1) and (a)(3) of the\n\nSecurities Act of 1933, which prohibit fraud or deception in the offer or sale of\n\nsecurities,2 and § 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-\n\n\n2\n Section 17(a) provides, in relevant part:\n\n (a) Use of interstate commerce for purpose of fraud or deceit\n\n 9\n\f5(a) and (c), which prohibit fraud or deception “in connection with the purchase or\n\nsale of any security.”3 As relief, the SEC seeks to enjoin Defendants permanently\n\n\n It shall be unlawful for any person in the offer or sale of any securities\n . . . by the use of any means or instruments of transportation or\n communication in interstate commerce or by use of the mails, directly or\n indirectly\n\n (1) to employ any device, scheme, or artifice to defraud, or\n\n ....\n\n (3) to engage in any transaction, practice, or course of\n business which operates or would operate as a fraud or\n deceit upon the purchaser.\n\n15 U.S.C. § 77q(a)(1), (3).\n3\n Section 10 provides, in relevant part:\n\n It shall be unlawful for any person, directly or indirectly, by the use of\n any means or instrumentality of interstate commerce or of the mails, or\n of any facility of any national securities exchange—\n\n ....\n\n (b) To use or employ, in connection with the purchase or\n sale of any security registered on a national securities\n exchange or any security not so registered, . . . any\n manipulative or deceptive device or contrivance in\n contravention of such rules and regulations as the\n Commission may prescribe as necessary or appropriate in\n the public interest or for the protection of investors.\n\n15 U.S.C. § 78j(b). The SEC promulgated its Rule 10b-5 under § 10(b)’s authority.\nSee Janus Capital Grp., Inc. v. First Derivative Traders, 564 U.S. 135, 141-42 (2011).\nRelevant here, Rule 10b-5 provides:\n\n It shall be unlawful for any person, directly or indirectly, by the use of\n any means or instrumentality of interstate commerce, or of the mails or\n of any facility of any national securities exchange,\n 10\n\ffrom engaging in this scheme, to impose civil penalties, and to disgorge all\n\nDefendants’ “ill-gotten gains” (Aplt. App. 32).\n\n At the time the SEC initiated this enforcement action, it obtained ex parte three\n\npreliminary orders from the district court 1) freezing Defendants’ assets;\n\n2) appointing a receiver over those assets and over Defendants’ business; and\n\n3) entering a temporary restraining order (“TRO”) prohibiting Defendants from\n\ncontinuing to operate their business. After an adversarial evidentiary hearing, the\n\ndistrict court made the TRO a preliminary injunction and denied Defendants’ motion\n\nto set aside the receivership. It is these two rulings that are at issue in this\n\ninterlocutory appeal.\n\n We grant the receiver’s motion to appear on appeal as an amicus. The receiver\n\nasserts that, although the notice of appeal named both Scoville and Traffic Monsoon\n\nas appellants, the receiver has not authorized Traffic Monsoon’s appeal.\n\n\n\n (a) To employ any device, scheme, or artifice to defraud,\n [or]\n\n ....\n\n (c) To engage in any act, practice, or course of business\n which operates or would operate as a fraud or deceit upon\n any person,\n\n in connection with the purchase or sale of any security.\n\n17 C.F.R. § 240.10b-5. Because “Rule 10b-5 . . . is coextensive with the coverage of\n§ 10(b),” we will refer primarily to § 10(b). S.E.C. v. Smart, 678 F.3d 850, 856 n.7\n(10th Cir. 2012) (internal quotation marks omitted).\n\n 11\n\fFurthermore, the attorney who filed the notice of appeal informed the district court\n\nthat, while he represented Scoville, the attorney did not represent Traffic Monsoon\n\nbecause the company was in receivership. For these reasons, Traffic Monsoon is not\n\na proper party to this appeal. Nevertheless, the district court recently authorized\n\nScoville “to appeal and advance arguments on behalf of Traffic Monsoon in th[is]\n\nappeal.” (Doc. 120.)4 Consequently, our rulings on this appeal similarly apply to\n\nTraffic Monsoon.\n\n III. STANDARD OF REVIEW\n\n This court reviews the district court’s order appointing a receiver, and refusing\n\nto set aside that order, for an abuse of discretion. See DeTar Distrib. Co. v. Tri-State\n\nMotor Transit Co., 379 F.2d 244, 252 (10th Cir. 1967). See generally SEC v. Vescor\n\nCapital Corp., 599 F.3d 1189, 1194, 1198 (10th Cir. 2010) (recognizing, in SEC civil\n\naction, district court’s equitable power to appoint a receiver and the court’s “broad\n\npowers and wide discretion to determine relief in an equity receivership” (internal\n\nquotation marks, alteration omitted)).\n\n We also review the district court’s decision to grant a preliminary injunction\n\nfor an abuse of discretion. See McDonnell v. City & Cty. of Denver, 878 F.3d 1247,\n\n1252 (10th Cir. 2018). “A district court abuses its discretion when it commits an\n\nerror of law or relies upon a clearly erroneous factual finding.” Id. (internal\n\nquotation marks omitted).\n\n\n4\n We GRANT Scoville’s motion to supplement the record with the district court’s\namended order.\n 12\n\f A movant is not entitled to a preliminary injunction unless he can\n show: (1) he is likely to succeed on the merits of his claim; (2) he will\n suffer irreparable harm if the injunction is denied; (3) his threatened\n injury outweighs the harm the grant of the injunction will cause the\n opposing party; and (4) if issued, the injunction will not adversely affect\n the public interest. Because the grant of a preliminary injunction is “an\n extraordinary remedy,” the movant must make a “clear showing” that he\n is entitled to the injunction. Winter v. Nat. Res. Def. Council, Inc., 555\n U.S. 7, 22 . . . (2008). Further, the movant must meet a heightened burden\n if he seeks a preliminary injunction, like the one [at issue here], that will\n alter the status quo. When “seeking such an injunction [the movant] must\n make a strong showing both with regard to the likelihood of success on\n the merits and with regard to the balance of the harms.” O Centro Espirita\n Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 976 (10th Cir.\n 2004) (en banc) [(per curiam)].\n\nMcDonnell, 878 F.3d at 1252 (citations omitted) (bracketed material added).5 On\n\nappeal, Scoville focuses only on whether the SEC has made a sufficient showing of\n\nthe likelihood of its success on its antifraud claims.\n\n\n\n\n IV. DISCUSSION\n\n Scoville challenges both the preliminary injunction and the receivership\n\nprimarily on three grounds. First, he contends that the antifraud provisions of the\n\nfederal securities acts do not apply to offers to sell, and sales of, Adpacks to Traffic\n\nMonsoon members located outside the United States. The extraterritorial reach of a\n\n\n\n5\n The district court required the SEC in this case to make this heightened showing\nbecause the preliminary injunction at issue here did more than maintain the status\nquo, it also required Traffic Monsoon affirmatively to provide the receiver with any\ninformation she deemed necessary. We accept that same analysis for purposes of this\nappeal.\n 13\n\ffederal statute is a matter of congressional intent and Congress has clearly indicated,\n\nthrough the 2010 Dodd-Frank Act amendments to the securities laws, that the\n\nantifraud provisions apply when either significant steps are taken in the United States\n\nto further a violation of those antifraud provisions or conduct outside the United\n\nStates has a foreseeable substantial effect within the United States. Because Scoville\n\nengaged in conduct within the United States that has been shown likely to have\n\nviolated the securities laws, we conclude the antifraud provisions reach Traffic\n\nMonsoon’s sale of Adpacks outside the United States.\n\n Second, Scoville argues that Adpacks are not “securities” and so are not\n\nsubject to federal securities laws. We reject that argument because Adpacks meet the\n\nthree-part test for investment contracts, which qualify as securities regulated by\n\nfederal law.\n\n Lastly, Scoville contends that the SEC has failed to show it is likely to succeed\n\nin proving the elements of its antifraud claims and, in particular, cannot show that\n\nDefendants engaged in a fraudulent securities scheme with the requisite scienter. We\n\nreject those arguments because the SEC presented sufficient evidence that\n\nDefendants were likely operating a fraudulent scheme—a Ponzi scheme—and likely\n\ndoing so with the required scienter. For these reasons, explained in greater detail\n\nbelow, and because we conclude the remainder of Scoville’s arguments lack merit,\n\nwe affirm the district court’s rulings entering a preliminary injunction and refusing to\n\nset aside the receivership.\n\n\n\n 14\n\fA. The antifraud provisions reach Traffic Monsoon’s sales of, or offers to sell,\nAdpacks to purchasers located outside the United States\n\n Scoville first asserts that the antifraud provisions of the federal securities acts\n\ndo not reach Traffic Monsoon’s sales of, or offers to sell, Adpacks to people living\n\noutside the United States. That amounts to 90% of Traffic Monsoon’s Adpack sales.\n\n 1. Congress has provided that the antifraud provisions apply\n extraterritorially when significant steps are taken in the United States to\n further a violation or conduct occurring outside the United States has a\n foreseeable substantial effect within the United States\n\n Whether a federal statute applies to conduct outside the United States is a\n\nquestion of congressional intent. See Morrison v. Nat’l Australia Bank Ltd., 561\n\nU.S. 247, 255 (2010). There is a presumption that Congress intends a statute to apply\n\nonly within the United States, see id., unless Congress has “affirmatively and\n\nunmistakably” indicated that the statute should apply extraterritorially, RJR Nabisco,\n\nInc. v. European Cmty., 136 S. Ct. 2090, 2100 (2016). “When a statute gives no\n\nclear indication of an extraterritorial application, it has none.” Morrison, 561 U.S. at\n\n255.\n\n “Th[e] [Supreme] Court has established a two-step framework for deciding\n\nquestions of extraterritoriality.” WesternGeco LLC. v. ION Geophysical Corp., 138\n\nS. Ct. 2129, 2136 (2018). “The first step asks ‘whether the presumption against\n\nextraterritoriality has been rebutted.’” Id. (quoting RJR Nabisco, 136 S. Ct. at 2101).\n\n“If the presumption against extraterritoriality has not been rebutted, the second step\n\nof our framework asks ‘whether the case involves a domestic application of the\n\n\n\n 15\n\fstatute.’” Id. (quoting RJR Nabisco, 136 S. Ct. at 2101). If either step is satisfied,\n\nthe statute applies to the challenged conduct. See id.\n\n Here, we can resolve at step one the question of the extraterritorial reach of the\n\nantifraud provisions because it is clear that Congress “affirmatively and\n\nunmistakably” directed that those provisions apply extraterritorially in an\n\nenforcement action. Through the 2010 Dodd-Frank Act, Congress amended both the\n\n1933 and 1934 securities acts to state:\n\n The district courts of the United States and the United States courts\n of any Territory shall have jurisdiction of an action or proceeding brought\n or instituted by the Commission or the United States alleging a violation\n of section 77q(a) of this title [Section 17(a) of the 1933 Securities Act]\n involving—\n\n (1) conduct within the United States that constitutes\n significant steps in furtherance of the violation, even if the\n securities transaction occurs outside the United States and\n involves only foreign investors; or\n\n (2) conduct occurring outside the United States that has a\n foreseeable substantial effect within the United States.\n\n15 U.S.C. § 77v(c) (bracketed material added); see also id. § 78aa(b) (amended 1934\n\nSecurities Exchange Act providing federal district courts with “jurisdiction of an\n\naction or proceeding brought or instituted by the [SEC] or the United States alleging a\n\nviolation of the antifraud provisions of this chapter involving--(1) conduct within the\n\nUnited States that constitutes significant steps in furtherance of the violation, even if the\n\nsecurities transaction occurs outside the United States and involves only foreign\n\ninvestors; or (2) conduct occurring outside the United States that has a foreseeable\n\nsubstantial effect within the United States”).\n\n 16\n\f Scoville argues that, while Dodd-Frank amended these jurisdictional\n\nprovisions of the securities acts, Congress has not expressly stated that the antifraud\n\nprovisions of those securities acts apply extraterritorially. We reject that argument in\n\nlight of the specific context in which Congress enacted the 2010 jurisdictional\n\namendments as part of the Dodd-Frank Act. See Morrison, 561 U.S. at 265 (stating,\n\nin determining whether a statute applies extraterritorially, that “[a]ssuredly context\n\ncan be consulted”); see also RJR Nabisco, 136 S. Ct. at 2102; Kiobel v. Royal Dutch\n\nPetroleum Co., 569 U.S. 108, 119 (2013) (looking to “historical background against\n\nwhich the [statute at issue there] was enacted” to determine whether presumption\n\nagainst extraterritorial application had been rebutted).\n\n Historically, Congress, in originally enacting the federal securities acts in 1933\n\nand 1934, did not address the extraterritorial reach of the antifraud provisions of\n\nthose statutes. See Morrison, 561 U.S. at 255 (addressing specifically § 10(b)).\n\nNotwithstanding that fact, courts of appeals for over forty years applied the antifraud\n\nprovisions of those acts extraterritorially when “wrongful conduct occurred in the\n\nUnited States” or when conduct outside the United States had a “substantial effect in\n\nthe United States or upon United States citizens.” Id. at 257 (internal quotation\n\nmarks omitted); see also id. at 255-60. This became known as the conduct-and-\n\neffects test. Id. at 259; see also id. at 257-59. The courts of appeals treated\n\napplication of the conduct-and-effects test to decide when the federal securities acts\n\napplied extraterritorially as a matter of subject-matter jurisdiction. Id. at 253-54,\n\n257-60.\n\n 17\n\f In 2006, in a completely different context (a Title VII employment case), the\n\nSupreme Court addressed the difference between matters that implicate a federal\n\ncourt’s subject-matter jurisdiction and matters that go, instead, to proving an element\n\nof a claim. See Arbaugh v. Y&H Corp., 546 U.S. 500, 503 (2006). Distinguishing\n\nbetween the two issues also turns on congressional intent. Id. at 514-15. In Arbaugh,\n\nthe Supreme Court held that the statutory provision restricting application of Title\n\nVII only to employers with fifteen or more employees was not a jurisdictional\n\nprerequisite but instead went to the merits of a Title VII claim. 546 U.S. at 503, 515-\n\n16. The Court reached that conclusion because Congress placed this fifteen-\n\nemployee requirement, not in the statute’s jurisdictional provision, but instead in the\n\ndefinitions section of the statute, id. at 514-15; “when Congress does not rank a\n\nstatutory limitation on coverage as jurisdictional, courts should treat the restriction as\n\nnonjurisdictional in character,” id. at 516.\n\n Returning to the specific question at issue here, the extraterritorial reach of the\n\nantifraud provisions of the federal securities laws, the Second Circuit, in 2008,\n\napplied a conduct-and-effects test to such a securities case in Morrison v. National\n\nAustralian Bank Ltd. to determine the district court’s subject-matter jurisdiction. 547\n\nF.3d 167, 170-71 (2d Cir. 2008). In doing so, however, the Second Circuit noted that\n\nCongress, in enacting the securities laws, had never addressed the extraterritorial\n\nreach of their antifraud provisions and “urge[d] that this significant omission receive\n\nthe appropriate attention of Congress . . . .” Id. at 170 & n.4. The Supreme Court\n\n\n\n 18\n\fgranted certiorari to review the Second Circuit’s Morrison decision. See 558 U.S.\n\n1047 (Nov. 30, 2009).\n\n In the meantime, Congress accepted the Second Circuit’s invitation and, in\n\nOctober 2009, amendments to the federal securities acts were proposed that would\n\neventually become § 929P(b) of the Dodd-Frank Act; those amendments added the\n\nextraterritorial language now found in 15 U.S.C. §§ 77v(c) and 78aa(b), quoted\n\npreviously in this opinion, see supra p. 16.\n\n The Supreme Court, however, decided Morrison before Congress finalized\n\nthose amendments. The specific question presented to the Supreme Court in\n\nMorrison was whether § 10(b), the antifraud provision of the 1934 Act, applied to\n\npurchases by Australians on the Australian stock exchange of shares in the National\n\nBank of Australia. 561 U.S. at 250-52. The Australian purchasers brought suit in the\n\nUnited States under American securities laws, alleging that the Australian Bank’s\n\nstock lost value after the Bank bought an American mortgage servicing company\n\nwhose owners had misrepresented the value of that company to the Australian Bank.\n\nId. at 251-53.\n\n In Morrison, the Supreme Court, relying on the Arbaugh line of cases, first\n\nheld, contrary to decades of circuit-level authority, that the question of whether\n\nfederal securities laws applied extraterritorially was not a matter of subject-matter\n\njurisdiction, but instead went to the merits of the claim. Id. at 253-54 (“[T]o ask\n\nwhat conduct § 10(b) reaches is to ask what conduct § 10(b) prohibits, which is a\n\n\n\n 19\n\fmerits question. Subject-matter jurisdiction, by contrast, refers to a tribunal’s power\n\nto hear a case.” (internal quotation marks omitted)).\n\n Second, Morrison held that, because Congress, in originally enacting § 10(b),\n\ndid not address whether that provision applied extraterritorially, § 10(b) did not apply\n\noutside the United States. Id. at 255. Morrison, therefore, concluded that the courts\n\nof appeals were wrong to apply their conduct-and-effects tests to determine when\n\n§ 10(b) applied outside the United States because § 10(b) simply did not apply\n\nextraterritorially. Id. at 255-65. Instead, focusing on the language of § 10(b), the\n\nCourt held that that antifraud provision only applied domestically; that is, to fraud\n\nonly “in connection with the purchase or sale of a security listed on an American\n\nstock exchange, and the purchase or sale of any other security in the United States.”6\n\nId. at 273.\n\n The Supreme Court issued Morrison on June 24, 2010. At that time, the\n\nproposed Dodd-Frank Act was before a joint congressional committee tasked with\n\nironing out differences in the House and Senate versions of that bill. One such\n\ndifference was that the House had included what eventually became § 929P(b),\n\naddressing as a jurisdictional matter the extraterritorial application of the antifraud\n\n\n6\n Morrison addressed § 10(b) of the 1934 Act, which makes it unlawful to use fraud\n“in connection with the purchase or sale of any security.” Morrison, 561 U.S. at 262\n(quoting 15 U.S.C. § 78j(b)). The 1933 Act, instead, makes it unlawful to use fraud\nin selling, or offering to sell, a security. See 15 U.S.C. § 77q(a)(1), (3). But\nMorrison noted that “[t]he same focus on domestic transactions is evident in the\nSecurities Act of 1933, enacted by the same Congress as the [1934] Exchange Act,\nand forming part of the comprehensive regulation of securities trading.” 561 U.S. at\n268 (citation omitted).\n 20\n\fprovisions, while the Senate had removed that proposed amendment. The day that\n\nthe Supreme Court issued Morrison was the final day that the joint committee\n\nconsidered the proposed Dodd-Frank Act. See SEC v. Gruss, 859 F. Supp. 2d 653,\n\n664 (S.D. N.Y. 2012). The committee published the final version of the bill several\n\ndays later, and it included § 929P(b). The Dodd-Frank Act was enacted into law on\n\nJuly 21, 2010, less than a month after Morrison.\n\n Morrison, then, contrary to forty years of circuit-level law, held that the\n\nquestion of the extraterritorial reach of § 10(b) did not implicate a court’s subject-\n\nmatter jurisdiction; instead, other provisions of the securities acts gave district courts\n\nsubject-matter jurisdiction to hear SEC enforcement actions generally. 561 U.S. at\n\n254-55 (citing 15 U.S.C. § 78aa). But Congress, in the Dodd-Frank Act, amended\n\nonly the jurisdictional sections of the securities laws to indicate that the antifraud\n\nprovisions applied extraterritorially when a version of the conduct-and-effects test is\n\nmet. The Dodd-Frank Act did not make any explicit revisions to the substantive\n\nantifraud provisions themselves. See generally U.S. SEC v. Chicago Convention\n\nCtr., LLC, 961 F. Supp. 2d 905, 910 (N.D. Ill. 2013) (recognizing that “the plain\n\nlanguage of the Section 929P(b) seems purely jurisdictional—particularly in light of\n\nits placement in the jurisdictional section of the Exchange Act—yet the\n\nCongressional intent behind that provision supports the conclusion that the provision\n\nis substantive”).\n\n Notwithstanding the placement of the Dodd-Frank amendments in the\n\njurisdictional provisions of the securities acts, given the context and historical\n\n 21\n\fbackground surrounding Congress’s enactment of those amendments, it is clear to us\n\nthat Congress undoubtedly intended that the substantive antifraud provisions should\n\napply extraterritorially when the statutory conduct-and-effects test is satisfied. We\n\nagree, then, with the district court, which stated:\n\n Although courts generally presume that Congress is familiar with the\n precedents of the Supreme Court when it enacts legislation, the close\n proximity between the date when Morrison was issued and the date when\n the language of Dodd-Frank was finalized, greatly undermines this\n presumption. It strains credulity to assume that legislators read Morrison\n on the last day that they met to negotiate the final version of a massive\n 850-page omnibus bill designed to overhaul large swaths of the United\n States financial regulations and consciously chose to enact Section\n 929P(b) against the background of the fundamental shift in securities law\n brought about by Morrison. Given this timing, the more reasonable\n assumption is that Morrison was issued too late in the legislative process\n to reasonably permit Congress to react to it.\n\n(Aplt. App. 2086-87.)\n\n This conclusion is bolstered by the title Congress gave this section of the\n\nDodd-Frank Act, “STRENGTHENING ENFORCEMENT BY THE COMMISSION.”\n\nDodd-Frank Wall Street Reform and Consumer Protection Act, PL 111-203 (July 21,\n\n2010), 124 Stat 1376. See generally Almendarez-Torres v. United States, 523 U.S.\n\n224, 234 (1998) (“[T]he title of a statute and the heading of a section are tools\n\navailable for the resolution of a doubt about the meaning of a statute.”) (internal\n\nquotation marks omitted)). In another section, § 929Y, the Dodd-Frank Act directed\n\nthe SEC to “solicit public comment and thereafter conduct a study to determine the\n\nextent to which private rights of action under the antifraud provisions” of the 1934\n\nAct “should be extended” extraterritorially. We agree with the district court that this\n\n\n 22\n\fsuggests Congress believed it “had extended the SEC’s authority to bring an\n\n[antifraud] enforcement action in Section 929P(b).” (Aplt. App. 2089 (emphasis\n\nadded).) Furthermore, several members of Congress, including § 929P’s drafter,\n\nRepresentative Paul Kanjorski, stated that the purpose of that provision was to make\n\nclear that the antifraud provisions apply extraterritorially in enforcement actions.\n\n For all of these reasons, then, we conclude that Congress has “affirmatively\n\nand unmistakably” indicated that the antifraud provisions of the federal securities\n\nacts apply extraterritorially when the statutory conduct-and-effects test is met.\n\n 2. Because Dodd-Frank’s conduct-and-effects test is met here, the\n antifraud provisions apply to Defendants’ sales of, and offers to sell,\n Adpacks to customers located outside the United States\n\n Having determined that the antifraud provisions of the federal securities\n\nacts can apply extraterritorially when the statutory conduct-and-effect test is\n\nmet, we now apply that test to Traffic Monsoon’s sales of, and offers to sell,\n\nAdpacks to customers located outside the United States. The scope of that\n\nextraterritorial application turns on congressional intent; that is, “on the limits\n\nCongress has . . . imposed on the statute[s’] foreign application.” RJR\n\nNabisco, 136 S. Ct. at 2101. Here, Congress limited the extraterritorial\n\napplication of the antifraud provisions in enforcement actions to\n\n (1) conduct within the United States that constitutes\n significant steps in furtherance of the violation, even if the\n securities transaction occurs outside the United States and\n involves only foreign investors; [and]\n\n (2) conduct occurring outside the United States that has a\n foreseeable substantial effect within the United States.\n\n 23\n\f15 U.S.C. § 77v(c); see also id. § 78aa(b).\n\n We agree with the district court that Defendants’ “‘conduct within the United\n\nStates . . . constitute[d] significant steps in furtherance of the violation’ of Rule 10b-5\n\nand Section 17(a). Mr. Scoville conceived and created Traffic Monsoon in the\n\nUnited States. Through Traffic Monsoon, he created and promoted the Adpack\n\ninvestments over the internet while residing in Utah.” (Aplt. App. 2091.) We add\n\nthat the servers housing the Traffic Monsoon website were physically located in the\n\nUnited States. For these reasons, the district court correctly held that the antifraud\n\nprovisions of the federal securities acts encompass Defendants’ sales of, and offers to\n\nsell, Adpacks to Traffic Monsoon members located outside the United States.\n\nB. Adpacks are “securities”\n\n Scoville next contends that Adpacks are not “securities” and therefore\n\nDefendants are not subject to federal securities laws. Like the district court, we\n\ndisagree.\n\n As an initial matter, Scoville argues that the question of whether Adpacks are\n\n“securities” implicates federal courts’ subject-matter jurisdiction. We disagree, for\n\nthe same reasons the Supreme Court in Morrison held that whether the statute applied\n\nextraterritorially was not a jurisdictional issue. See 561 U.S. at 251, 253-54 & n.3\n\n(distinguishing, in § 10(b) enforcement action, between provisions in federal\n\nsecurities statutes giving district courts subject-matter jurisdiction—the power to hear\n\na case—from questions of what conduct § 10(b) reaches, “which is a merits\n\n\n 24\n\fquestion”). Instead, the question of whether Adpacks are “securities” is a merits\n\ninquiry. See, e.g., Avenue Capital Mgmt. II, L.P. v. Schaden, 843 F.3d 876, 880-81,\n\n886 (10th Cir. 2016) (affirming dismissal of private claim under the 1934 Act for\n\nfailure to state a claim on which relief can be granted because plaintiffs failed to\n\nshow that the challenged transactions were “securities”).\n\n Answering that merits inquiry, we agree with the district court that Adpacks\n\nqualify as securities regulated under the 1933 and 1934 acts. “Congress enacted the\n\nSecurities Acts in response to ‘serious abuses in a largely unregulated securities\n\nmarket,’ and for the purpose of regulating ‘investments, in whatever form they are\n\nmade and by whatever name they are called.” SEC v. Shields, 744 F.3d 633, 641\n\n(10th Cir. 2014) (quoting Reves v. Ernst & Young, 494 U.S. 56, 60–61 (1990)).\n\n“Congress ‘painted with a broad brush’ in defining a ‘security’ in recognition of the\n\n‘virtually limitless scope of human ingenuity, especially in the creation of “countless\n\nand variable schemes devised by those who seek the use of the money of others on\n\nthe promise of profits. . . .”’” Id. (quoting Reves, 494 U.S at 60-61). Nevertheless,\n\n“‘Congress, in enacting the securities laws, did not intend to provide a broad federal\n\nremedy for all fraud.’” Id. at 642 (quoting Marine Bank v. Weaver, 455 U.S. 551,\n\n556 (1982)).\n\n\n\n\n 25\n\f The 1933 Act defines “security” to include an “investment contract,” 15\n\nU.S.C. § 77b(a)(1), and that is what the district court determined an Adpack is.7\n\nAlthough the Act did not further define “investment contract,” the Supreme Court did\n\nin SEC v. W.J. Howey Co., 328 U.S. 293 (1946). In Howey, the owner of a large\n\nFlorida citrus grove sold small pieces of the grove to the public to help finance the\n\ngrove’s further development. Id. at 294-95. The purchasers of these small parts of\n\nthe grove were “for the most part . . . non-residents of Florida. They [we]re\n\npredominantly business and professional people who lack the knowledge, skill and\n\nequipment necessary for the care and cultivation of citrus trees. They [we]re\n\nattracted by the expectation of substantial profits.” Id. at 296. Purchasers received\n\nthe deed to the small pieces of land they bought and the option to hire the seller or\n\nsome other company to cultivate and market the fruit grown on that particular piece\n\nof land, with the net proceeds to be paid to the land purchaser. Id. at 295-96.\n\nOwners of 85% of the pieces of land sold hired the grove owner to cultivate and\n\nmarket their sections of the grove. Id. at 295. Howey held that a purchaser’s “land\n\nsales contract, the warranty deed [he received] and the service contract together\n\nconstitute[d] an ‘investment contract,’” id. at 297 (bracketed material added), defined\n\nas “a contract, transaction or scheme whereby a person invests his money in a\n\n\n\n\n7\n Although the 1933 and 1934 Acts use “slightly different formulations” for defining\na “security,” the Supreme Court has, nevertheless treated those formulations “as\nessentially identical in meaning.” SEC v. Edwards, 540 U.S. 389, 393 (2004).\n 26\n\fcommon enterprise and is led to expect profits solely from the efforts of the promoter\n\nor a third party.” Id. at 298-99; see also id. at 297-301.\n\n “[T]o distinguish an investment contract from other commercial dealings, the\n\nHowey test has subsequently been broken down into three requirements: (1) an\n\ninvestment, (2) in a common enterprise, (3) with a reasonable expectation of profits\n\nto be derived from the entrepreneurial or managerial efforts of others.” Shields, 744\n\nF.3d at 643 n.7 (internal quotation marks omitted). In addressing the legal question\n\nof whether some transaction qualifies as an “investment contract,” see Thompson,\n\n732 F.3d at 1161, we disregard form over substance and focus on the “‘economic\n\nrealities underlying a transaction, and not on the name appended thereto.’” Shields,\n\n744 F.3d at 643 (quoting United Housing Found’n, Inc. v. Forman, 421 U.S. 837, 849\n\n(1975)). Here, Scoville contends—unsuccessfully—that the SEC failed to make an\n\nadequate showing as to any of the three Howey requirements and, therefore, the\n\ndistrict court erred in treating Adpacks as “investment contracts” subject to federal\n\nsecurities regulation.\n\n 1. An Adpack qualifies as an investment\n\n An Adpack is an “investment.” Just as the citrus grove owner in Howey was\n\n“offering something more than fee simple interests in land, something different from\n\na farm or orchard coupled with management services,” 328 U.S. at 299, so, too,\n\nTraffic Monsoon was offering its Adpack purchasers something more than just\n\nadvertising services. Adpacks also offered the purchaser an opportunity to share in\n\nTraffic Monsoon’s revenue. Just as the land purchasers in Howey “had no desire to\n\n 27\n\foccupy the[ir] land or to develop it themselves” but were instead “attracted solely by\n\nthe prospects of a return on their investment,” id. At 300, so too the vast majority of\n\n$50 Adpack purchasers bought Adpacks, not to receive the same advertising services\n\nthey could have bought ala carte for $10.95, but instead to have the opportunity to\n\nshare in Traffic Monsoon’s revenue and earn significant returns. We agree with the\n\ndistrict court that\n\n [t]he evidence clearly points to the fact that Traffic Monsoon’s explosive\n growth was driven by members purchasing and repurchasing Adpacks in\n order to obtain the incredible returns on their investment, not by intense\n demand for Traffic Monsoon’s [internet advertising] services. Indeed,\n many Adpack purchasers had no interest in the website visits Traffic\n Monsoon offered, and Traffic Monsoon only ever delivered a fraction of\n the clicks it promised to deliver. In short, the economic reality of the\n Adpack purchases is that they were investments.\n\n(Aplt. App. 2103 (bracketed material added).)\n\n Neither the fact that a few Adpack purchasers testified that they bought\n\nAdpacks for the advertising services, nor the fact that not every Adpack purchaser\n\nqualified to share revenue (although almost all of them did), prevents us from\n\ncharacterizing Adpacks as investments. See Howey, 328 U.S. at 300-01 (holding, in\n\nthe context of § 10(b), that Court’s conclusion that land sales and service contracts\n\namounted to an “investment contract” was “unaffected by the fact that some\n\npurchasers choose not to accept the full offer of an investment contract by declining\n\nto enter into a service contract with the” citrus grove owner).\n\n\n\n\n 28\n\f 2. An Adpack involves a common enterprise\n\n An Adpack is an investment in “a common enterprise.” Just as the land\n\npurchasers in Howey bought the opportunity “to share in the profits of a large citrus\n\nfruit enterprise managed and partly owned by” the citrus grove owners, 328 U.S. at\n\n299, so Adpack purchasers bought the opportunity to share in revenue derived from\n\nthe sale of all of Traffic Monsoon’s advertising services. The revenue in which\n\nAdpack purchasers could share, then, was generated from a common enterprise,\n\nTraffic Monsoon’s sale of internet advertising services.\n\n 3. An Adpack provides members with a reasonable expectation of profit\n derived from the entrepreneurial or management efforts of others\n\n Howey’s third requirement for an investment contract is that the investor “is\n\nled to expect profits solely from the efforts of the promoter or a third party.” 328\n\nU.S. at 298-99; see also Shields, 744 F.3d at 643 n.7 (applying this part of Howey’s\n\ninquiry to require that the consumer have “a reasonable expectation of profits to be\n\nderived from the entrepreneurial or managerial efforts of others” (internal quotation\n\nmarks omitted)).\n\n Scoville points out that, although the revenue Adpack purchasers share is\n\nderived from Defendants’ efforts to sell Traffic Monsoon’s advertising services, the\n\nreturns Adpack purchasers earn are also the result of purchasers’ own efforts in\n\nclicking on other members’ websites in order to qualify to share revenue. Although\n\nthe Supreme Court, in Howey, stated that the profits expected from an “investment\n\ncontract” should result “solely” from others’ efforts, 328 U.S. at 301, the Tenth\n\n\n 29\n\fCircuit has held that “[i]nvestments satisfy the third prong of the Howey test when\n\nthe efforts made by those other than the investor are the ones which affect\n\nsignificantly the success or failure of the enterprise.” Shields, 744 F.3d at 645\n\n(internal quotation marks omitted); see also Crowley v. Montgomery Ward & Co.,\n\n570 F.2d 875, 877 (10th Cir. 1975).\n\n That is the case here. Adpack purchasers expected Traffic Monsoon’s success\n\nto turn “significantly” on the company’s efforts to sell its advertising services. See\n\ngenerally Miller v. Cent. Chinchilla Grp., Inc., 494 F.2d 414, 417 (8th Cir. 1974) (“In\n\ndetermining whether the plaintiffs’ contributions were nominal or significant, the\n\nissue is not what efforts, in fact, were required of them. Rather, it is what efforts the\n\nplaintiffs were reasonably led to believe were required of them at the time they\n\nentered into the contracts.”). Assuming Adpack purchasers expected to contribute to\n\nsome degree in the delivery of those services by clicking on other members’\n\nwebsites, Adpack purchasers did not expect their own efforts to be significant. No\n\nmatter how many Adpacks a member owned, the member expected to qualify to share\n\nrevenue on all of his or her Adpacks by spending only four minutes a day clicking on\n\nup to fifty ads. Moreover, there is evidence that receiving clicks on one’s website or\n\ninternet ad was not the motivation for the vast majority of Adpack purchasers;\n\nearning a 10% return on their investment was.\n\n Scoville further argues that Adpacks cannot be “investment contracts” because\n\nthere was never a “guarantee” that qualified Adpack purchasers would receive a share\n\nof Traffic Monsoon’s revenue because Traffic Monsoon’s obligation to share its\n\n 30\n\frevenue was contingent on there being revenue to share. But neither were the citrus\n\ngrove purchasers in Howey guaranteed a return on their investment in the citrus crop.\n\n328 U.S. at 296. So long as a transaction satisfies Howey’s test for an “investment\n\ncontract,” “it is immaterial whether the enterprise is speculative or non-speculative.”\n\nId. at 301. To qualify as an “investment contract,” the purchaser just has to have a\n\n“reasonable expectation of profits.” Shields, 744 F.3d at 642 n.7, 643; see, e.g.,\n\nEdwards, 540 U.S. at 395; see also SEC v. Int’l Loan Network, Inc. 968 F.2d 1304,\n\n1308 (D.C. Cir. 1992) (rejecting argument that investment program could not be an\n\n“investment contract” because no return was guaranteed; stating that “[v]ery few\n\ninvestments ‘guarantee’ a return—all that Howey requires is a ‘reasonable\n\nexpectation of profits’” (quoting Forman, 421 U.S. at 852)). The evidence here\n\nsupported Adpack purchasers’ reasonable expectation—based on the representations\n\nmade to them—of sharing Traffic Monsoon’s revenue. Although Traffic Monsoon’s\n\nwebsite stated there was no guarantee that there would always be revenue for\n\nqualifying members to share, it does not appear that there was ever a time, before the\n\nPayPal freeze, when a qualifying member did not receive purported shared revenue.\n\n 4. Conclusion: Adpacks qualify as investment contracts\n\n For these reasons, then, the district court did not err in concluding that\n\nAdpacks meet Howey’s three-part test and, therefore, qualify as “investment\n\ncontracts” and, thus, as securities subject to regulation under the federal securities\n\nlaws.\n\n\n\n 31\n\fC. It is likely that the SEC can prove that Defendants’ conduct violated the\nantifraud provisions of federal securities laws\n\n Scoville asserts that the district court abused its discretion in determining that\n\nthe SEC can likely establish that Defendants violated the antifraud statutes. Scoville\n\ntakes aim at two requisite elements of Defendants’ liability.\n\n 1. Defendants were operating a Ponzi scheme\n\n The antifraud statutes apply to fraudulent schemes involving securities.8 The\n\ndistrict court held that the SEC will likely succeed in proving that Defendants were\n\ninvolved in such a fraudulent scheme because Defendants were operating a Ponzi\n\nscheme, which is “inherently deceptive because it generates a false appearance of\n\nprofitability by using money from new investors to generate returns for earlier\n\ninvestors.” (Aplt. App. 2099 (citing Mukamal v. Gen. Elec. Capital Corp. (In re\n\nPalm Beach Fin. Partners, L.P.), 517 B.R. 310, 346 (Bankr. S.D. Fla. 2013)).)\n\n Scoville counters that the SEC cannot prove that Defendants were operating a\n\nPonzi scheme. But there is strong evidence that that is exactly what Defendants were\n\ndoing.\n\n\n8\n More precisely, § 17(a)(1) prohibits “any device, scheme, or artifice to defraud” in\n“the offer or sale of any securities.” 15 U.S.C. § 77q(a)(1). Section 17(a)(3) also\napplies to “the offer or sale of any securities,” and prohibits “engag[ing] in any\ntransaction, practice, or course of business which operates or would operate as a\nfraud or deceit upon the purchaser.” Id. § 77q(a)(3). Section 10(b) addresses the use\nof “any manipulative or deceptive device or contrivance” “in connection with the\npurchase or sale of any security.” Id. § 78j(b). SEC Rule 10b-5(a) and (c) apply “in\nconnection with the purchase or sale of any security,” and prohibit using “any device,\nscheme, or artifice to defraud,” and “engag[ing] in any act, practice, or course of\nbusiness which operates or would operate as a fraud or deceit upon any person.” 17\nC.F.R. § 240.10b-5(a), (c).\n 32\n\f The Tenth Circuit has offered several different definitions of a Ponzi scheme,\n\nbut the district court captured the gist of those definitions in noting that “the central\n\ncharacteristic of a Ponzi scheme is that returns are not based upon any underlying\n\nbusiness activity. Instead, money from new investors is used to pay earlier\n\ninvestors.” (Aplt. App. 2097.) See Thompson, 732 F.3d at 1154 n.3; Wilcox, 691\n\nF.3d at 1173 n.2. In addition, in a Ponzi scheme often the “money contributed by\n\nlater investors generates artificially high dividends for the original investors, whose\n\nexample attracts even larger investments.” Wilcox, 691 F.3d at 1173 n.2.\n\n The district court did not abuse its discretion in determining that the SEC is\n\nlikely to prove Defendants were operating a Ponzi scheme. For every $50 Adpack it\n\nsold, Traffic Monsoon often had to pay out $55 to qualifying purchasers, and even\n\n$60 if the purchaser had been recruited by another Traffic Monsoon member. Traffic\n\nMonsoon paid these amounts from sales of new Adpacks; there was essentially no\n\nother business activity generating the revenue Traffic Monsoon was sharing with\n\nqualifying Adpack purchasers. Furthermore, Traffic Monsoon misrepresented to its\n\nAdpack purchasers that the revenue it was sharing came from sales of all of Traffic\n\nMonsoon’s other advertising services, which Traffic Monsoon falsely indicated were\n\nmore popular than its Adpacks. Thus, the record evidence would support finding that\n\nDefendants were offering the possibility of high rates of return on qualifying\n\nAdpacks and paying those returns using money from later Adpack sales. In light of\n\nthis evidence, it was likely the SEC will be able to show that Defendants were\n\n\n\n 33\n\foperating a Ponzi scheme and thus, be able to prove that Defendants used fraud or\n\ndeception to sell, or offer to sell, Adpacks.\n\n Scoville’s arguments to the contrary are unavailing. For example, although he\n\nreasserts his argument that Traffic Monsoon was only selling advertising services, as\n\npreviously discussed, the vast majority of Adpack purchasers were not seeking to buy\n\ninternet advertising services but were, instead, seeking a significant return on their\n\n$50-per-Adpack investment. Moreover, Defendants may still be operating a Ponzi\n\nscheme even if they have “some legitimate business operations.” Gillman v. Geis (In\n\nre Twin Peaks Fin. Servs., Inc.), 516 B.R. 651, 655 (Bankr. D. Utah 2014); see also\n\nMiller v. Wulf, 84 F. Supp. 3d 1266, 1272 & n.45 (D. Utah 2015).\n\n Neither does Scoville’s assertion—that before an Adpack purchaser could\n\nshare in Traffic Monsoon’s revenue, he had to qualify by clicking on other members’\n\nwebsites for four minutes on a given day and then there had to be revenue Traffic\n\nMonsoon generated in the preceding twenty-four hours—prevent the district court’s\n\ndetermination that Defendants were running a Ponzi scheme. Even though\n\nDefendants disclosed these requisite conditions for an Adpack purchaser to share in\n\nTraffic Monsoon’s revenue, there is evidence that Defendants deceived purchasers by\n\ntelling them that the revenue to be shared was generated by Traffic Monsoon’s other\n\n\n\n\n 34\n\fadvertising services that were more popular than Adpacks. Instead, essentially all of\n\nthe revenue to be shared was generated by the sale of additional Adpacks.9\n\n Lastly, Scoville argues that Defendants did not expressly limit returns on\n\nAdpacks only to the original purchasers. And he contends that none of its members\n\nhad ever suffered a loss. But the fact that this Ponzi scheme had not yet imploded\n\ndoes not mean Defendants were not running a Ponzi scheme.\n\n 2. Scienter\n\n In a related argument, Scoville next asserts that the SEC will not be able to\n\nestablish that Defendants acted with the requisite scienter. We disagree.\n\n Sections 10(b) and 17(a)(1) require proof that Defendants acted with the\n\n“intent to deceive, manipulate, or defraud.” Aaron v. SEC, 446 U.S. 680, 686 & n.5,\n\n695-97 (1980) (quoting Ernst & Ernst v. Hochfelder, 425 U.S 185, 194 & n.12\n\n(1976)). (No scienter is required under § 17(a)(3). See Aaron, 446 U.S. at 695-96.)\n\nThe district court correctly held that this scienter is likely established in this case by\n\nthe fact that Defendants were operating a Ponzi scheme, which again is “inherently\n\ndeceptive because it generates a false appearance of profitability by using money\n\nfrom new investors to generate returns for earlier investors.” (Aplt. App. 2099\n\n(citing In re Palm Beach Fin. Partners, 517 B.R. at 346).).10\n\n\n9\n In light of this crucial deception, we reject, at this point in the case, Scoville’s\nassertion that Defendants were not operating a Ponzi scheme because “Traffic\nMonsoon has fully disclosed everything to its members.” (Aplt. Br. 52.)\n10\n Scoville incorrectly asserts that the district court never addressed Defendants’\nscienter.\n 35\n\fD. Traffic Monsoon’s revenue generated from the sale of its other advertising\nservices is properly subject to the district court’s preliminary orders\n\n Lastly, Scoville asserts that, “[a]t a minimum, the Court should order the\n\nDistrict Court to release the [currently frozen] Traffic Monsoon funds that are\n\nadmittedly outside the scope of any of the SEC’s claims.” (Aplt. Br. 53 (bracketed\n\nmaterial added).) Scoville refers to the approximately $3 million that Traffic\n\nMonsoon earned from September 2014 through July 2016 from the sale of its internet\n\nadvertising services other than Adpacks. But it is not clear, as Scoville asserts, that\n\nthese other sales are “outside the scope of any of the SEC’s claims.” Id. The\n\nrevenue to be shared with qualifying Adpack purchasers was generated from the sale\n\nof all of Traffic Monsoon’s advertising services. Further, Traffic Monsoon had no\n\naccounting records; its revenue apparently was pooled together and Adpack\n\npurchasers were paid from that pool. In light of this evidence, Scoville has not\n\nshown that the district court abused its discretion in preliminarily freezing all of\n\nTraffic Monsoon’s funds and placing them in the receivership.11\n\n V. CONCLUSION\n\n For the foregoing reasons, we AFFIRM in all respects the district court’s\n\nchallenged preliminary decisions in this civil enforcement action. Although early in\n\n\n\n\n11\n The issue of whether Scoville should personally be liable under the antifraud\nprovisions has not been adequately raised before us, nor adequately preserved below.\nAccordingly, we decline to address that issue.\n 36\n\fthis civil enforcement action, the SEC has established the likelihood that it will\n\nsucceed on its antifraud claims against Defendants.12\n\n\n\n\n12\n Once our mandate has issued, the Court will direct the parties to address the status\nof the related appeal, No. 18-4038.\n 37\n\f17-4059, SEC v. Traffic Monsoon LLC\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: SECURITIES AND EXCHANGE COMMISSION, Plaintiff - Appellee, v. Charles D. SCOVILLE, Defendant - Appellant, and Traffic Monsoon, LLC, Defendant. Peggy Hunt, Receiver - Amicus Curiae.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-01-24\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS January 24, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n SECURITIES AND EXCHANGE\\n COMMISSION,\\n\\n Plaintiff - Appellee,\\n\\n v. No. 17-4059\\n\\n CHARLES D. SCOVILLE,\\n\\n Defendant - Appellant,\\n\\n and\\n\\n TRAFFIC MONSOON, LLC,\\n\\n Defendant.\\n ____________________________\\n\\n PEGGY HUNT,\\n\\n Receiver - Amicus Curiae.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Utah\\n (D.C. No. 2:16-CV-00832-JNP)\\n _________________________________\\n\\nD. Loren Washburn (Micah S. Echols and Tom W. Stewart, Marquis Aurbach Coffing,\\nLas Vegas, Nevada, with him on the briefs), Smith Correll, LLP, Salt Lake City, Utah for\\nDefendants-Appellants.\\n\\nWilliam K. Shirey (Robert B. Stebbins, General Counsel, Michael A. Conley, Solicitor,\\nwith him on the briefs), Counsel to the Solicitor, Securities and Exchange Commission,\\nWashington, D.C., for Plaintiff-Appellee.\\n\\fPeggy Hunt, Michael F. Thomson, and John J. Weist, Dorsey & Whitney LLP, filed a\\nbrief for Receiver-Amicus Curiae Peggy Hunt, in support of Plaintiff-Appellee.\\n _________________________________\\n\\nBefore BRISCOE, EBEL, and HARTZ, Circuit Judges.\\n _________________________________\\n\\nEBEL, Circuit Judge.\\n _________________________________\\n\\n This case involves an alleged worldwide Ponzi scheme and the antifraud\\n\\nprovisions of the federal Securities Act of 1933 and the Securities Exchange Act of\\n\\n1934. Defendant Charles Scoville operated an internet traffic exchange business\\n\\nthrough his Utah company, Defendant Traffic Monsoon, LLC. The Securities and\\n\\nExchange Commission (“SEC”) initiated this civil enforcement action, alleging\\n\\nDefendants were instead operating an unlawful online Ponzi scheme involving the\\n\\nfraudulent sale of securities. In this interlocutory appeal, Scoville challenges several\\n\\npreliminary orders the district court issued at the outset of this still ongoing\\n\\nenforcement action, including orders freezing Defendants’ assets, appointing a\\n\\nreceiver, and preliminarily enjoining Defendants from continuing to operate their\\n\\nbusiness.\\n\\n In upholding these preliminary rulings, we conclude first that the antifraud\\n\\nprovisions of the federal securities laws reach Traffic Monsoon’s sales to customers\\n\\noutside the United States because, applying the conduct-and-effects test added to the\\n\\nfederal securities laws by the 2010 Dodd-Frank Act, Traffic Monsoon undertook\\n\\nsignificant conduct in the United States to make those sales to persons abroad. We\\n\\nfurther conclude that Traffic Monsoon’s Adpacks (bundled internet advertising\\n\\n 2\\n\\fservices that allowed a purchaser to share in some of Traffic Monsoon’s revenue)\\n\\nqualified as investment contracts, which are securities regulated under the 1933 and\\n\\n1934 securities acts. We further conclude that the SEC has asserted sufficient\\n\\nevidence to make it likely that the SEC will be able to prove that Defendants were\\n\\noperating a fraudulent scheme—a Ponzi scheme—selling Adpacks and that scheme\\n\\nviolated the antifraud statutes invoked in this litigation. Having jurisdiction under 28\\n\\nU.S.C. § 1292(a)(1) and (2), we, therefore, AFFIRM the district court’s challenged\\n\\npreliminary orders.\\n\\n I. BACKGROUND\\n\\n The parties have very different versions of Traffic Monsoon’s business model.\\n\\nAccording to the SEC, Traffic Monsoon was operating a Ponzi scheme; that is, a\\n\\nfraudulent scheme in which the business pays returns to its investors that are\\n\\nfinanced, not by the success of the business, but instead with money acquired from\\n\\nlater investors. See S.E.C. v. Thompson, 732 F.3d 1151, 1154 n.3 (10th Cir. 2013);\\n\\nOkla. Dep’t of Sec. ex rel. Faught v. Wilcox, 691 F.3d 1171, 1173 n.2 (10th Cir.\\n\\n2012).\\n\\n Scoville claims, instead, that Traffic Monsoon is a legitimate internet traffic\\n\\nexchange offering internet advertising services. Such a business is based on the fact\\n\\nthat internet search engines such as Google use algorithms that rank more frequently\\n\\nvisited websites higher than less frequently visited websites. In light of this, website\\n\\ntraffic exchange businesses sell visits to a purchaser’s website in order to make that\\n\\n\\n\\n 3\\n\\fwebsite look more popular than it really is. Scoville operated several other website\\n\\ntraffic exchanges before starting Traffic Monsoon in September 2014.\\n\\n Scoville is the sole member, manager and registered agent of Traffic Monsoon,\\n\\na Utah limited liability company. Scoville is also Traffic Monsoon’s sole employee,\\n\\nrunning the business from his Utah apartment. The company contracts with a\\n\\nRussian computer programmer and several call centers hired to respond to telephone\\n\\ninquiries from Traffic Monsoon’s customers.\\n\\n Scoville operated Traffic Monsoon through a website,\\n\\nwww.trafficmonsoon.com, which was housed on servers physically located in the\\n\\nUnited States. Someone wanting to do business with Traffic Monsoon first had to\\n\\nbecome a member by going to the website and creating an account. The member\\n\\ncould then purchase through the website several different advertising services. For\\n\\nexample, for $5, a member could purchase twenty clicks on the member’s online\\n\\nadvertisement, and for $5.95 a member could purchase 1,000 visits to his website.\\n\\n Alternatively, instead of purchasing these services “ala carte,” a member could\\n\\npurchase an Adpack for $50. A single Adpack entitled a member to receive 1,000\\n\\nvisits to his website and twenty clicks on his internet ad (a $10.95 value), plus the\\n\\nopportunity to share in Traffic Monsoon’s revenue up to a maximum amount of $55.\\n\\nAn Adpack purchaser qualified to share in Traffic Monsoon’s revenue for each day\\n\\nthat the purchaser clicked on ten (later fifty1) internet ads for other Traffic Monsoon\\n\\n\\n1\\n For most of the time Traffic Monsoon was operating, Adpack purchasers only had\\nto click on ten ads each day to qualify for revenue sharing. In the last month of its\\n 4\\n\\fmembers’ websites and remained on the ad’s landing page for five seconds. In this\\n\\nway, Scoville gave Adpack purchasers an incentive to provide some of the\\n\\nadvertising traffic that Traffic Monsoon was selling to its members.\\n\\n Traffic Monsoon made it easy for members to complete their daily qualifying\\n\\nadvertising clicks. When an Adpack purchaser logged onto his account, Traffic\\n\\nMonsoon would present rotating ads on which the member could click.\\n\\n The [member] is required to view each banner ad for only 5 seconds,\\n and a counter appears that counts down the 5 seconds for [the member].\\n At the end of that time the [member] must click on an image that\\n appears, to verify that he is human, and then the next banner ad appears\\n automatically. The act of completing the 50 clicks takes the [member]\\n 4.1 minutes per day.\\n\\n(Aplt. App. at 18-19 ¶ 31 (bracketed material added).)\\n\\n Each day that the Adpack purchaser completed the requisite number of clicks,\\n\\nthe purchaser qualified to share in Traffic Monsoon’s revenue earned during the\\n\\npreceding twenty-four hours. Ninety-nine percent of Adpack purchasers qualified to\\n\\nshare in at least some of Traffic Monsoon’s revenue. But “neither the website nor\\n\\nany other publicly available source of information informed the members how Traffic\\n\\nMonsoon split the revenue between itself and qualified Adpack holders.” (Id. 2068\\n\\n¶ 14.) Furthermore, because Traffic Monsoon “kept no accounting records[,] . . .\\n\\nthere are no readily available documents that describe precisely how the money was\\n\\ndistributed.” (Id. 2067 ¶ 13.) Typically an Adpack purchaser would earn $1 in\\n\\n\\n\\noperation, however, Traffic Monsoon increased this requirement to fifty clicks per\\nday.\\n 5\\n\\fshared revenue for each day that he made the requisite number of qualifying clicks.\\n\\nThat meant that in approximately fifty-five days an Adpack purchaser could reach the\\n\\nmaximum $55 return, recouping the $50 the member originally paid for the Adpack\\n\\nplus earning an additional $5 (a 10% return over the fifty-five days). When an\\n\\nAdpack purchaser reached the maximum $55 limit in revenue sharing, that member\\n\\ncould either use that money to purchase another $50 Adpack, or he could withdraw\\n\\nsome or all of his money.\\n\\n A member could buy as many $50 Adpacks as he wanted; some members\\n\\nowned hundreds or even thousands of Adpacks. Significantly, no matter how many\\n\\nAdpacks a member purchased, the member could qualify to share in Traffic\\n\\nMonsoon’s revenue on all of those Adpacks through a single four-minute session\\n\\nclicking on other members’ ads. So, for example, if a member bought 100 Adpacks\\n\\nfor $5,000 and spent just four minutes a day for fifty-five days clicking on other\\n\\nTraffic Monsoon members’ ads, the Adpack purchaser would earn back the original\\n\\n$5,000 he paid for all 100 Adpacks plus an additional 10% return of $500. If a\\n\\nmember consistently rolled over his Adpacks every fifty-five days, instead of cashing\\n\\nout, he would earn a 66% annual return on his original $50 purchase and in a year he\\n\\nwould have 166 Adpacks. In three years, he could earn “$25,080—over five times\\n\\nthe initial [$5,000] investment.” (Id. 2073-74 ¶ 30.)\\n\\n A second way a Traffic Monsoon member could earn money was to recruit\\n\\nother members. The recruiting member would earn a 10% commission on every\\n\\nadvertising service the recruited member purchased. This included Adpacks the\\n\\n 6\\n\\frecruit purchased, both with new money and by rolling over earnings from prior\\n\\nAdpacks. The district court noted that “for all $50 Adpacks that were purchased by a\\n\\nreferred member, Traffic Monsoon typically deposited $60 worth of credits in\\n\\nmember accounts: $55 into the purchasing member’s account over a 55-day period\\n\\n(so long as the member qualified [to share revenue]) and $5 into the referring\\n\\nmember’s account.” (Id. 2068-69 ¶ 17.)\\n\\n The district court found that, while “[s]ome individuals initially purchased\\n\\nAdpacks principally as a way to promote their online businesses[,] . . . for many\\n\\nmembers, the profits that could be reaped from the Adpacks themselves quickly\\n\\neclipsed this motive.” (Id. 2071 ¶ 23.) “Indeed, many members have not received or\\n\\nused the web visits and banner clicks purchased in the Adpack” (id. 2072 ¶ 24),\\n\\nbecause Traffic Monsoon only delivered about 10% of the clicks and website visits it\\n\\nsold as part of the Adpacks.\\n\\n Before buying an Adpack, the member had to agree with Traffic Monson that\\n\\nthe Adpack was not an “investment” and that Traffic Monsoon’s “past performance\\n\\ndoes not guarantee [the purchaser] the same result in the future.” (Id. 2069 ¶ 18\\n\\n(internal quotation marks omitted).) Traffic Monsoon’s website also included a\\n\\nlengthy explanation to its members as to why it was not operating a Ponzi scheme.\\n\\nThe website further stated that the revenue Traffic Monsoon shared with its\\n\\nqualifying members was earned from the sale of all of its services, and not just\\n\\nAdpacks. But the website did not explain that Adpacks actually made up more than\\n\\n\\n\\n 7\\n\\f98% of Traffic Monsoon’s sales. In fact, Traffic Monsoon misrepresented that its\\n\\nother advertising services were more popular than Adpacks.\\n\\n Adpacks became enormously popular. Between October 2014 and July 2016,\\n\\nwhen the SEC initiated this civil enforcement action, members paid Traffic Monsoon\\n\\n$173 million in new money to purchase 3.4 million Adpacks and purchased\\n\\napproximately 14 million additional Adpacks—for $700 million—by rolling over\\n\\nmoney earned from earlier Adpacks. During this same time period, members paid\\n\\nonly $2.9 million for all other Traffic Monsoon advertising services. Of the total\\n\\namount of $175.9 million in cash Traffic Monsoon took in over this period, it\\n\\ndistributed approximately $88 million to its members, “leaving a difference of $87.4\\n\\nmillion between what has been paid in by members and what they have taken out.”\\n\\n(Id. 2074 ¶ 32.)\\n\\n Ninety percent of Adpacks were purchased by people who live outside the\\n\\nUnited States. Adpacks were especially popular in poorer countries, including\\n\\nBangladesh, Venezuela, and Morocco.\\n\\n “A large majority of the financial transactions the members completed with\\n\\nTraffic Monsoon—both payments made to Traffic Monsoon and withdrawals from\\n\\nthe member’s [sic] account—were conducted through PayPal.” (Id. 2066 ¶ 6.) In\\n\\nJanuary 2016, because “PayPal became concerned about the enormous growth in the\\n\\nvolume of transactions between Traffic Monsoon and its members,” PayPal “froze\\n\\nTraffic Monsoon’s account.” (Id. 2074 ¶ 33.) Traffic Monsoon then began using\\n\\nother electronic payment processors. The PayPal freeze lasted until July 11, 2016.\\n\\n 8\\n\\fThe SEC brought this enforcement action two weeks later. During those interim two\\n\\nweeks, Scoville withdrew $23 million from Traffic Monsoon’s PayPal accounts, in\\n\\nincrements of $100,000, which is the maximum withdrawal PayPal allows at one\\n\\ntime. Scoville tried to withdraw another $10 million, but PayPal reversed those\\n\\ntransactions.\\n\\n “The receiver currently has between $50-$60 million in frozen Traffic\\n\\nMonsoon assets” (id. 2075 ¶ 37), and “[t]he current combined account balance of\\n\\nTraffic Monsoon members is $34.2 million” (id. 2075 ¶ 36). But members “typically\\n\\nhad relatively little money in their account because the members would continually\\n\\nreinvest it by purchasing new Adpacks.” (Id. 2072 ¶ 27.) “If the outstanding\\n\\nAdpacks currently owned by Traffic Monsoon members had matured, the [members’]\\n\\naccount balance would” have increased from $34 million to $278.1 million.” (Id.\\n\\n2075 ¶ 36.)\\n\\n II. THIS SEC ENFORCEMENT ACTION\\n\\n The SEC initiated this civil enforcement action on July 26, 2016, invoking the\\n\\ndistrict court’s jurisdiction under 15 U.S.C. §§ 77t, 77v, 78u, and 78aa. Relevant to\\n\\nthis appeal, the SEC contends that Defendants violated § 17(a)(1) and (a)(3) of the\\n\\nSecurities Act of 1933, which prohibit fraud or deception in the offer or sale of\\n\\nsecurities,2 and § 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-\\n\\n\\n2\\n Section 17(a) provides, in relevant part:\\n\\n (a) Use of interstate commerce for purpose of fraud or deceit\\n\\n 9\\n\\f5(a) and (c), which prohibit fraud or deception “in connection with the purchase or\\n\\nsale of any security.”3 As relief, the SEC seeks to enjoin Defendants permanently\\n\\n\\n It shall be unlawful for any person in the offer or sale of any securities\\n . . . by the use of any means or instruments of transportation or\\n communication in interstate commerce or by use of the mails, directly or\\n indirectly\\n\\n (1) to employ any device, scheme, or artifice to defraud, or\\n\\n ....\\n\\n (3) to engage in any transaction, practice, or course of\\n business which operates or would operate as a fraud or\\n deceit upon the purchaser.\\n\\n15 U.S.C. § 77q(a)(1), (3).\\n3\\n Section 10 provides, in relevant part:\\n\\n It shall be unlawful for any person, directly or indirectly, by the use of\\n any means or instrumentality of interstate commerce or of the mails, or\\n of any facility of any national securities exchange—\\n\\n ....\\n\\n (b) To use or employ, in connection with the purchase or\\n sale of any security registered on a national securities\\n exchange or any security not so registered, . . . any\\n manipulative or deceptive device or contrivance in\\n contravention of such rules and regulations as the\\n Commission may prescribe as necessary or appropriate in\\n the public interest or for the protection of investors.\\n\\n15 U.S.C. § 78j(b). The SEC promulgated its Rule 10b-5 under § 10(b)’s authority.\\nSee Janus Capital Grp., Inc. v. First Derivative Traders, 564 U.S. 135, 141-42 (2011).\\nRelevant here, Rule 10b-5 provides:\\n\\n It shall be unlawful for any person, directly or indirectly, by the use of\\n any means or instrumentality of interstate commerce, or of the mails or\\n of any facility of any national securities exchange,\\n 10\\n\\ffrom engaging in this scheme, to impose civil penalties, and to disgorge all\\n\\nDefendants’ “ill-gotten gains” (Aplt. App. 32).\\n\\n At the time the SEC initiated this enforcement action, it obtained ex parte three\\n\\npreliminary orders from the district court 1) freezing Defendants’ assets;\\n\\n2) appointing a receiver over those assets and over Defendants’ business; and\\n\\n3) entering a temporary restraining order (“TRO”) prohibiting Defendants from\\n\\ncontinuing to operate their business. After an adversarial evidentiary hearing, the\\n\\ndistrict court made the TRO a preliminary injunction and denied Defendants’ motion\\n\\nto set aside the receivership. It is these two rulings that are at issue in this\\n\\ninterlocutory appeal.\\n\\n We grant the receiver’s motion to appear on appeal as an amicus. The receiver\\n\\nasserts that, although the notice of appeal named both Scoville and Traffic Monsoon\\n\\nas appellants, the receiver has not authorized Traffic Monsoon’s appeal.\\n\\n\\n\\n (a) To employ any device, scheme, or artifice to defraud,\\n [or]\\n\\n ....\\n\\n (c) To engage in any act, practice, or course of business\\n which operates or would operate as a fraud or deceit upon\\n any person,\\n\\n in connection with the purchase or sale of any security.\\n\\n17 C.F.R. § 240.10b-5. Because “Rule 10b-5 . . . is coextensive with the coverage of\\n§ 10(b),” we will refer primarily to § 10(b). S.E.C. v. Smart, 678 F.3d 850, 856 n.7\\n(10th Cir. 2012) (internal quotation marks omitted).\\n\\n 11\\n\\fFurthermore, the attorney who filed the notice of appeal informed the district court\\n\\nthat, while he represented Scoville, the attorney did not represent Traffic Monsoon\\n\\nbecause the company was in receivership. For these reasons, Traffic Monsoon is not\\n\\na proper party to this appeal. Nevertheless, the district court recently authorized\\n\\nScoville “to appeal and advance arguments on behalf of Traffic Monsoon in th[is]\\n\\nappeal.” (Doc. 120.)4 Consequently, our rulings on this appeal similarly apply to\\n\\nTraffic Monsoon.\\n\\n III. STANDARD OF REVIEW\\n\\n This court reviews the district court’s order appointing a receiver, and refusing\\n\\nto set aside that order, for an abuse of discretion. See DeTar Distrib. Co. v. Tri-State\\n\\nMotor Transit Co., 379 F.2d 244, 252 (10th Cir. 1967). See generally SEC v. Vescor\\n\\nCapital Corp., 599 F.3d 1189, 1194, 1198 (10th Cir. 2010) (recognizing, in SEC civil\\n\\naction, district court’s equitable power to appoint a receiver and the court’s “broad\\n\\npowers and wide discretion to determine relief in an equity receivership” (internal\\n\\nquotation marks, alteration omitted)).\\n\\n We also review the district court’s decision to grant a preliminary injunction\\n\\nfor an abuse of discretion. See McDonnell v. City & Cty. of Denver, 878 F.3d 1247,\\n\\n1252 (10th Cir. 2018). “A district court abuses its discretion when it commits an\\n\\nerror of law or relies upon a clearly erroneous factual finding.” Id. (internal\\n\\nquotation marks omitted).\\n\\n\\n4\\n We GRANT Scoville’s motion to supplement the record with the district court’s\\namended order.\\n 12\\n\\f A movant is not entitled to a preliminary injunction unless he can\\n show: (1) he is likely to succeed on the merits of his claim; (2) he will\\n suffer irreparable harm if the injunction is denied; (3) his threatened\\n injury outweighs the harm the grant of the injunction will cause the\\n opposing party; and (4) if issued, the injunction will not adversely affect\\n the public interest. Because the grant of a preliminary injunction is “an\\n extraordinary remedy,” the movant must make a “clear showing” that he\\n is entitled to the injunction. Winter v. Nat. Res. Def. Council, Inc., 555\\n U.S. 7, 22 . . . (2008). Further, the movant must meet a heightened burden\\n if he seeks a preliminary injunction, like the one [at issue here], that will\\n alter the status quo. When “seeking such an injunction [the movant] must\\n make a strong showing both with regard to the likelihood of success on\\n the merits and with regard to the balance of the harms.” O Centro Espirita\\n Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 976 (10th Cir.\\n 2004) (en banc) [(per curiam)].\\n\\nMcDonnell, 878 F.3d at 1252 (citations omitted) (bracketed material added).5 On\\n\\nappeal, Scoville focuses only on whether the SEC has made a sufficient showing of\\n\\nthe likelihood of its success on its antifraud claims.\\n\\n\\n\\n\\n IV. DISCUSSION\\n\\n Scoville challenges both the preliminary injunction and the receivership\\n\\nprimarily on three grounds. First, he contends that the antifraud provisions of the\\n\\nfederal securities acts do not apply to offers to sell, and sales of, Adpacks to Traffic\\n\\nMonsoon members located outside the United States. The extraterritorial reach of a\\n\\n\\n\\n5\\n The district court required the SEC in this case to make this heightened showing\\nbecause the preliminary injunction at issue here did more than maintain the status\\nquo, it also required Traffic Monsoon affirmatively to provide the receiver with any\\ninformation she deemed necessary. We accept that same analysis for purposes of this\\nappeal.\\n 13\\n\\ffederal statute is a matter of congressional intent and Congress has clearly indicated,\\n\\nthrough the 2010 Dodd-Frank Act amendments to the securities laws, that the\\n\\nantifraud provisions apply when either significant steps are taken in the United States\\n\\nto further a violation of those antifraud provisions or conduct outside the United\\n\\nStates has a foreseeable substantial effect within the United States. Because Scoville\\n\\nengaged in conduct within the United States that has been shown likely to have\\n\\nviolated the securities laws, we conclude the antifraud provisions reach Traffic\\n\\nMonsoon’s sale of Adpacks outside the United States.\\n\\n Second, Scoville argues that Adpacks are not “securities” and so are not\\n\\nsubject to federal securities laws. We reject that argument because Adpacks meet the\\n\\nthree-part test for investment contracts, which qualify as securities regulated by\\n\\nfederal law.\\n\\n Lastly, Scoville contends that the SEC has failed to show it is likely to succeed\\n\\nin proving the elements of its antifraud claims and, in particular, cannot show that\\n\\nDefendants engaged in a fraudulent securities scheme with the requisite scienter. We\\n\\nreject those arguments because the SEC presented sufficient evidence that\\n\\nDefendants were likely operating a fraudulent scheme—a Ponzi scheme—and likely\\n\\ndoing so with the required scienter. For these reasons, explained in greater detail\\n\\nbelow, and because we conclude the remainder of Scoville’s arguments lack merit,\\n\\nwe affirm the district court’s rulings entering a preliminary injunction and refusing to\\n\\nset aside the receivership.\\n\\n\\n\\n 14\\n\\fA. The antifraud provisions reach Traffic Monsoon’s sales of, or offers to sell,\\nAdpacks to purchasers located outside the United States\\n\\n Scoville first asserts that the antifraud provisions of the federal securities acts\\n\\ndo not reach Traffic Monsoon’s sales of, or offers to sell, Adpacks to people living\\n\\noutside the United States. That amounts to 90% of Traffic Monsoon’s Adpack sales.\\n\\n 1. Congress has provided that the antifraud provisions apply\\n extraterritorially when significant steps are taken in the United States to\\n further a violation or conduct occurring outside the United States has a\\n foreseeable substantial effect within the United States\\n\\n Whether a federal statute applies to conduct outside the United States is a\\n\\nquestion of congressional intent. See Morrison v. Nat’l Australia Bank Ltd., 561\\n\\nU.S. 247, 255 (2010). There is a presumption that Congress intends a statute to apply\\n\\nonly within the United States, see id., unless Congress has “affirmatively and\\n\\nunmistakably” indicated that the statute should apply extraterritorially, RJR Nabisco,\\n\\nInc. v. European Cmty., 136 S. Ct. 2090, 2100 (2016). “When a statute gives no\\n\\nclear indication of an extraterritorial application, it has none.” Morrison, 561 U.S. at\\n\\n255.\\n\\n “Th[e] [Supreme] Court has established a two-step framework for deciding\\n\\nquestions of extraterritoriality.” WesternGeco LLC. v. ION Geophysical Corp., 138\\n\\nS. Ct. 2129, 2136 (2018). “The first step asks ‘whether the presumption against\\n\\nextraterritoriality has been rebutted.’” Id. (quoting RJR Nabisco, 136 S. Ct. at 2101).\\n\\n“If the presumption against extraterritoriality has not been rebutted, the second step\\n\\nof our framework asks ‘whether the case involves a domestic application of the\\n\\n\\n\\n 15\\n\\fstatute.’” Id. (quoting RJR Nabisco, 136 S. Ct. at 2101). If either step is satisfied,\\n\\nthe statute applies to the challenged conduct. See id.\\n\\n Here, we can resolve at step one the question of the extraterritorial reach of the\\n\\nantifraud provisions because it is clear that Congress “affirmatively and\\n\\nunmistakably” directed that those provisions apply extraterritorially in an\\n\\nenforcement action. Through the 2010 Dodd-Frank Act, Congress amended both the\\n\\n1933 and 1934 securities acts to state:\\n\\n The district courts of the United States and the United States courts\\n of any Territory shall have jurisdiction of an action or proceeding brought\\n or instituted by the Commission or the United States alleging a violation\\n of section 77q(a) of this title [Section 17(a) of the 1933 Securities Act]\\n involving—\\n\\n (1) conduct within the United States that constitutes\\n significant steps in furtherance of the violation, even if the\\n securities transaction occurs outside the United States and\\n involves only foreign investors; or\\n\\n (2) conduct occurring outside the United States that has a\\n foreseeable substantial effect within the United States.\\n\\n15 U.S.C. § 77v(c) (bracketed material added); see also id. § 78aa(b) (amended 1934\\n\\nSecurities Exchange Act providing federal district courts with “jurisdiction of an\\n\\naction or proceeding brought or instituted by the [SEC] or the United States alleging a\\n\\nviolation of the antifraud provisions of this chapter involving--(1) conduct within the\\n\\nUnited States that constitutes significant steps in furtherance of the violation, even if the\\n\\nsecurities transaction occurs outside the United States and involves only foreign\\n\\ninvestors; or (2) conduct occurring outside the United States that has a foreseeable\\n\\nsubstantial effect within the United States”).\\n\\n 16\\n\\f Scoville argues that, while Dodd-Frank amended these jurisdictional\\n\\nprovisions of the securities acts, Congress has not expressly stated that the antifraud\\n\\nprovisions of those securities acts apply extraterritorially. We reject that argument in\\n\\nlight of the specific context in which Congress enacted the 2010 jurisdictional\\n\\namendments as part of the Dodd-Frank Act. See Morrison, 561 U.S. at 265 (stating,\\n\\nin determining whether a statute applies extraterritorially, that “[a]ssuredly context\\n\\ncan be consulted”); see also RJR Nabisco, 136 S. Ct. at 2102; Kiobel v. Royal Dutch\\n\\nPetroleum Co., 569 U.S. 108, 119 (2013) (looking to “historical background against\\n\\nwhich the [statute at issue there] was enacted” to determine whether presumption\\n\\nagainst extraterritorial application had been rebutted).\\n\\n Historically, Congress, in originally enacting the federal securities acts in 1933\\n\\nand 1934, did not address the extraterritorial reach of the antifraud provisions of\\n\\nthose statutes. See Morrison, 561 U.S. at 255 (addressing specifically § 10(b)).\\n\\nNotwithstanding that fact, courts of appeals for over forty years applied the antifraud\\n\\nprovisions of those acts extraterritorially when “wrongful conduct occurred in the\\n\\nUnited States” or when conduct outside the United States had a “substantial effect in\\n\\nthe United States or upon United States citizens.” Id. at 257 (internal quotation\\n\\nmarks omitted); see also id. at 255-60. This became known as the conduct-and-\\n\\neffects test. Id. at 259; see also id. at 257-59. The courts of appeals treated\\n\\napplication of the conduct-and-effects test to decide when the federal securities acts\\n\\napplied extraterritorially as a matter of subject-matter jurisdiction. Id. at 253-54,\\n\\n257-60.\\n\\n 17\\n\\f In 2006, in a completely different context (a Title VII employment case), the\\n\\nSupreme Court addressed the difference between matters that implicate a federal\\n\\ncourt’s subject-matter jurisdiction and matters that go, instead, to proving an element\\n\\nof a claim. See Arbaugh v. Y&H Corp., 546 U.S. 500, 503 (2006). Distinguishing\\n\\nbetween the two issues also turns on congressional intent. Id. at 514-15. In Arbaugh,\\n\\nthe Supreme Court held that the statutory provision restricting application of Title\\n\\nVII only to employers with fifteen or more employees was not a jurisdictional\\n\\nprerequisite but instead went to the merits of a Title VII claim. 546 U.S. at 503, 515-\\n\\n16. The Court reached that conclusion because Congress placed this fifteen-\\n\\nemployee requirement, not in the statute’s jurisdictional provision, but instead in the\\n\\ndefinitions section of the statute, id. at 514-15; “when Congress does not rank a\\n\\nstatutory limitation on coverage as jurisdictional, courts should treat the restriction as\\n\\nnonjurisdictional in character,” id. at 516.\\n\\n Returning to the specific question at issue here, the extraterritorial reach of the\\n\\nantifraud provisions of the federal securities laws, the Second Circuit, in 2008,\\n\\napplied a conduct-and-effects test to such a securities case in Morrison v. National\\n\\nAustralian Bank Ltd. to determine the district court’s subject-matter jurisdiction. 547\\n\\nF.3d 167, 170-71 (2d Cir. 2008). In doing so, however, the Second Circuit noted that\\n\\nCongress, in enacting the securities laws, had never addressed the extraterritorial\\n\\nreach of their antifraud provisions and “urge[d] that this significant omission receive\\n\\nthe appropriate attention of Congress . . . .” Id. at 170 & n.4. The Supreme Court\\n\\n\\n\\n 18\\n\\fgranted certiorari to review the Second Circuit’s Morrison decision. See 558 U.S.\\n\\n1047 (Nov. 30, 2009).\\n\\n In the meantime, Congress accepted the Second Circuit’s invitation and, in\\n\\nOctober 2009, amendments to the federal securities acts were proposed that would\\n\\neventually become § 929P(b) of the Dodd-Frank Act; those amendments added the\\n\\nextraterritorial language now found in 15 U.S.C. §§ 77v(c) and 78aa(b), quoted\\n\\npreviously in this opinion, see supra p. 16.\\n\\n The Supreme Court, however, decided Morrison before Congress finalized\\n\\nthose amendments. The specific question presented to the Supreme Court in\\n\\nMorrison was whether § 10(b), the antifraud provision of the 1934 Act, applied to\\n\\npurchases by Australians on the Australian stock exchange of shares in the National\\n\\nBank of Australia. 561 U.S. at 250-52. The Australian purchasers brought suit in the\\n\\nUnited States under American securities laws, alleging that the Australian Bank’s\\n\\nstock lost value after the Bank bought an American mortgage servicing company\\n\\nwhose owners had misrepresented the value of that company to the Australian Bank.\\n\\nId. at 251-53.\\n\\n In Morrison, the Supreme Court, relying on the Arbaugh line of cases, first\\n\\nheld, contrary to decades of circuit-level authority, that the question of whether\\n\\nfederal securities laws applied extraterritorially was not a matter of subject-matter\\n\\njurisdiction, but instead went to the merits of the claim. Id. at 253-54 (“[T]o ask\\n\\nwhat conduct § 10(b) reaches is to ask what conduct § 10(b) prohibits, which is a\\n\\n\\n\\n 19\\n\\fmerits question. Subject-matter jurisdiction, by contrast, refers to a tribunal’s power\\n\\nto hear a case.” (internal quotation marks omitted)).\\n\\n Second, Morrison held that, because Congress, in originally enacting § 10(b),\\n\\ndid not address whether that provision applied extraterritorially, § 10(b) did not apply\\n\\noutside the United States. Id. at 255. Morrison, therefore, concluded that the courts\\n\\nof appeals were wrong to apply their conduct-and-effects tests to determine when\\n\\n§ 10(b) applied outside the United States because § 10(b) simply did not apply\\n\\nextraterritorially. Id. at 255-65. Instead, focusing on the language of § 10(b), the\\n\\nCourt held that that antifraud provision only applied domestically; that is, to fraud\\n\\nonly “in connection with the purchase or sale of a security listed on an American\\n\\nstock exchange, and the purchase or sale of any other security in the United States.”6\\n\\nId. at 273.\\n\\n The Supreme Court issued Morrison on June 24, 2010. At that time, the\\n\\nproposed Dodd-Frank Act was before a joint congressional committee tasked with\\n\\nironing out differences in the House and Senate versions of that bill. One such\\n\\ndifference was that the House had included what eventually became § 929P(b),\\n\\naddressing as a jurisdictional matter the extraterritorial application of the antifraud\\n\\n\\n6\\n Morrison addressed § 10(b) of the 1934 Act, which makes it unlawful to use fraud\\n“in connection with the purchase or sale of any security.” Morrison, 561 U.S. at 262\\n(quoting 15 U.S.C. § 78j(b)). The 1933 Act, instead, makes it unlawful to use fraud\\nin selling, or offering to sell, a security. See 15 U.S.C. § 77q(a)(1), (3). But\\nMorrison noted that “[t]he same focus on domestic transactions is evident in the\\nSecurities Act of 1933, enacted by the same Congress as the [1934] Exchange Act,\\nand forming part of the comprehensive regulation of securities trading.” 561 U.S. at\\n268 (citation omitted).\\n 20\\n\\fprovisions, while the Senate had removed that proposed amendment. The day that\\n\\nthe Supreme Court issued Morrison was the final day that the joint committee\\n\\nconsidered the proposed Dodd-Frank Act. See SEC v. Gruss, 859 F. Supp. 2d 653,\\n\\n664 (S.D. N.Y. 2012). The committee published the final version of the bill several\\n\\ndays later, and it included § 929P(b). The Dodd-Frank Act was enacted into law on\\n\\nJuly 21, 2010, less than a month after Morrison.\\n\\n Morrison, then, contrary to forty years of circuit-level law, held that the\\n\\nquestion of the extraterritorial reach of § 10(b) did not implicate a court’s subject-\\n\\nmatter jurisdiction; instead, other provisions of the securities acts gave district courts\\n\\nsubject-matter jurisdiction to hear SEC enforcement actions generally. 561 U.S. at\\n\\n254-55 (citing 15 U.S.C. § 78aa). But Congress, in the Dodd-Frank Act, amended\\n\\nonly the jurisdictional sections of the securities laws to indicate that the antifraud\\n\\nprovisions applied extraterritorially when a version of the conduct-and-effects test is\\n\\nmet. The Dodd-Frank Act did not make any explicit revisions to the substantive\\n\\nantifraud provisions themselves. See generally U.S. SEC v. Chicago Convention\\n\\nCtr., LLC, 961 F. Supp. 2d 905, 910 (N.D. Ill. 2013) (recognizing that “the plain\\n\\nlanguage of the Section 929P(b) seems purely jurisdictional—particularly in light of\\n\\nits placement in the jurisdictional section of the Exchange Act—yet the\\n\\nCongressional intent behind that provision supports the conclusion that the provision\\n\\nis substantive”).\\n\\n Notwithstanding the placement of the Dodd-Frank amendments in the\\n\\njurisdictional provisions of the securities acts, given the context and historical\\n\\n 21\\n\\fbackground surrounding Congress’s enactment of those amendments, it is clear to us\\n\\nthat Congress undoubtedly intended that the substantive antifraud provisions should\\n\\napply extraterritorially when the statutory conduct-and-effects test is satisfied. We\\n\\nagree, then, with the district court, which stated:\\n\\n Although courts generally presume that Congress is familiar with the\\n precedents of the Supreme Court when it enacts legislation, the close\\n proximity between the date when Morrison was issued and the date when\\n the language of Dodd-Frank was finalized, greatly undermines this\\n presumption. It strains credulity to assume that legislators read Morrison\\n on the last day that they met to negotiate the final version of a massive\\n 850-page omnibus bill designed to overhaul large swaths of the United\\n States financial regulations and consciously chose to enact Section\\n 929P(b) against the background of the fundamental shift in securities law\\n brought about by Morrison. Given this timing, the more reasonable\\n assumption is that Morrison was issued too late in the legislative process\\n to reasonably permit Congress to react to it.\\n\\n(Aplt. App. 2086-87.)\\n\\n This conclusion is bolstered by the title Congress gave this section of the\\n\\nDodd-Frank Act, “STRENGTHENING ENFORCEMENT BY THE COMMISSION.”\\n\\nDodd-Frank Wall Street Reform and Consumer Protection Act, PL 111-203 (July 21,\\n\\n2010), 124 Stat 1376. See generally Almendarez-Torres v. United States, 523 U.S.\\n\\n224, 234 (1998) (“[T]he title of a statute and the heading of a section are tools\\n\\navailable for the resolution of a doubt about the meaning of a statute.”) (internal\\n\\nquotation marks omitted)). In another section, § 929Y, the Dodd-Frank Act directed\\n\\nthe SEC to “solicit public comment and thereafter conduct a study to determine the\\n\\nextent to which private rights of action under the antifraud provisions” of the 1934\\n\\nAct “should be extended” extraterritorially. We agree with the district court that this\\n\\n\\n 22\\n\\fsuggests Congress believed it “had extended the SEC’s authority to bring an\\n\\n[antifraud] enforcement action in Section 929P(b).” (Aplt. App. 2089 (emphasis\\n\\nadded).) Furthermore, several members of Congress, including § 929P’s drafter,\\n\\nRepresentative Paul Kanjorski, stated that the purpose of that provision was to make\\n\\nclear that the antifraud provisions apply extraterritorially in enforcement actions.\\n\\n For all of these reasons, then, we conclude that Congress has “affirmatively\\n\\nand unmistakably” indicated that the antifraud provisions of the federal securities\\n\\nacts apply extraterritorially when the statutory conduct-and-effects test is met.\\n\\n 2. Because Dodd-Frank’s conduct-and-effects test is met here, the\\n antifraud provisions apply to Defendants’ sales of, and offers to sell,\\n Adpacks to customers located outside the United States\\n\\n Having determined that the antifraud provisions of the federal securities\\n\\nacts can apply extraterritorially when the statutory conduct-and-effect test is\\n\\nmet, we now apply that test to Traffic Monsoon’s sales of, and offers to sell,\\n\\nAdpacks to customers located outside the United States. The scope of that\\n\\nextraterritorial application turns on congressional intent; that is, “on the limits\\n\\nCongress has . . . imposed on the statute[s’] foreign application.” RJR\\n\\nNabisco, 136 S. Ct. at 2101. Here, Congress limited the extraterritorial\\n\\napplication of the antifraud provisions in enforcement actions to\\n\\n (1) conduct within the United States that constitutes\\n significant steps in furtherance of the violation, even if the\\n securities transaction occurs outside the United States and\\n involves only foreign investors; [and]\\n\\n (2) conduct occurring outside the United States that has a\\n foreseeable substantial effect within the United States.\\n\\n 23\\n\\f15 U.S.C. § 77v(c); see also id. § 78aa(b).\\n\\n We agree with the district court that Defendants’ “‘conduct within the United\\n\\nStates . . . constitute[d] significant steps in furtherance of the violation’ of Rule 10b-5\\n\\nand Section 17(a). Mr. Scoville conceived and created Traffic Monsoon in the\\n\\nUnited States. Through Traffic Monsoon, he created and promoted the Adpack\\n\\ninvestments over the internet while residing in Utah.” (Aplt. App. 2091.) We add\\n\\nthat the servers housing the Traffic Monsoon website were physically located in the\\n\\nUnited States. For these reasons, the district court correctly held that the antifraud\\n\\nprovisions of the federal securities acts encompass Defendants’ sales of, and offers to\\n\\nsell, Adpacks to Traffic Monsoon members located outside the United States.\\n\\nB. Adpacks are “securities”\\n\\n Scoville next contends that Adpacks are not “securities” and therefore\\n\\nDefendants are not subject to federal securities laws. Like the district court, we\\n\\ndisagree.\\n\\n As an initial matter, Scoville argues that the question of whether Adpacks are\\n\\n“securities” implicates federal courts’ subject-matter jurisdiction. We disagree, for\\n\\nthe same reasons the Supreme Court in Morrison held that whether the statute applied\\n\\nextraterritorially was not a jurisdictional issue. See 561 U.S. at 251, 253-54 & n.3\\n\\n(distinguishing, in § 10(b) enforcement action, between provisions in federal\\n\\nsecurities statutes giving district courts subject-matter jurisdiction—the power to hear\\n\\na case—from questions of what conduct § 10(b) reaches, “which is a merits\\n\\n\\n 24\\n\\fquestion”). Instead, the question of whether Adpacks are “securities” is a merits\\n\\ninquiry. See, e.g., Avenue Capital Mgmt. II, L.P. v. Schaden, 843 F.3d 876, 880-81,\\n\\n886 (10th Cir. 2016) (affirming dismissal of private claim under the 1934 Act for\\n\\nfailure to state a claim on which relief can be granted because plaintiffs failed to\\n\\nshow that the challenged transactions were “securities”).\\n\\n Answering that merits inquiry, we agree with the district court that Adpacks\\n\\nqualify as securities regulated under the 1933 and 1934 acts. “Congress enacted the\\n\\nSecurities Acts in response to ‘serious abuses in a largely unregulated securities\\n\\nmarket,’ and for the purpose of regulating ‘investments, in whatever form they are\\n\\nmade and by whatever name they are called.” SEC v. Shields, 744 F.3d 633, 641\\n\\n(10th Cir. 2014) (quoting Reves v. Ernst & Young, 494 U.S. 56, 60–61 (1990)).\\n\\n“Congress ‘painted with a broad brush’ in defining a ‘security’ in recognition of the\\n\\n‘virtually limitless scope of human ingenuity, especially in the creation of “countless\\n\\nand variable schemes devised by those who seek the use of the money of others on\\n\\nthe promise of profits. . . .”’” Id. (quoting Reves, 494 U.S at 60-61). Nevertheless,\\n\\n“‘Congress, in enacting the securities laws, did not intend to provide a broad federal\\n\\nremedy for all fraud.’” Id. at 642 (quoting Marine Bank v. Weaver, 455 U.S. 551,\\n\\n556 (1982)).\\n\\n\\n\\n\\n 25\\n\\f The 1933 Act defines “security” to include an “investment contract,” 15\\n\\nU.S.C. § 77b(a)(1), and that is what the district court determined an Adpack is.7\\n\\nAlthough the Act did not further define “investment contract,” the Supreme Court did\\n\\nin SEC v. W.J. Howey Co., 328 U.S. 293 (1946). In Howey, the owner of a large\\n\\nFlorida citrus grove sold small pieces of the grove to the public to help finance the\\n\\ngrove’s further development. Id. at 294-95. The purchasers of these small parts of\\n\\nthe grove were “for the most part . . . non-residents of Florida. They [we]re\\n\\npredominantly business and professional people who lack the knowledge, skill and\\n\\nequipment necessary for the care and cultivation of citrus trees. They [we]re\\n\\nattracted by the expectation of substantial profits.” Id. at 296. Purchasers received\\n\\nthe deed to the small pieces of land they bought and the option to hire the seller or\\n\\nsome other company to cultivate and market the fruit grown on that particular piece\\n\\nof land, with the net proceeds to be paid to the land purchaser. Id. at 295-96.\\n\\nOwners of 85% of the pieces of land sold hired the grove owner to cultivate and\\n\\nmarket their sections of the grove. Id. at 295. Howey held that a purchaser’s “land\\n\\nsales contract, the warranty deed [he received] and the service contract together\\n\\nconstitute[d] an ‘investment contract,’” id. at 297 (bracketed material added), defined\\n\\nas “a contract, transaction or scheme whereby a person invests his money in a\\n\\n\\n\\n\\n7\\n Although the 1933 and 1934 Acts use “slightly different formulations” for defining\\na “security,” the Supreme Court has, nevertheless treated those formulations “as\\nessentially identical in meaning.” SEC v. Edwards, 540 U.S. 389, 393 (2004).\\n 26\\n\\fcommon enterprise and is led to expect profits solely from the efforts of the promoter\\n\\nor a third party.” Id. at 298-99; see also id. at 297-301.\\n\\n “[T]o distinguish an investment contract from other commercial dealings, the\\n\\nHowey test has subsequently been broken down into three requirements: (1) an\\n\\ninvestment, (2) in a common enterprise, (3) with a reasonable expectation of profits\\n\\nto be derived from the entrepreneurial or managerial efforts of others.” Shields, 744\\n\\nF.3d at 643 n.7 (internal quotation marks omitted). In addressing the legal question\\n\\nof whether some transaction qualifies as an “investment contract,” see Thompson,\\n\\n732 F.3d at 1161, we disregard form over substance and focus on the “‘economic\\n\\nrealities underlying a transaction, and not on the name appended thereto.’” Shields,\\n\\n744 F.3d at 643 (quoting United Housing Found’n, Inc. v. Forman, 421 U.S. 837, 849\\n\\n(1975)). Here, Scoville contends—unsuccessfully—that the SEC failed to make an\\n\\nadequate showing as to any of the three Howey requirements and, therefore, the\\n\\ndistrict court erred in treating Adpacks as “investment contracts” subject to federal\\n\\nsecurities regulation.\\n\\n 1. An Adpack qualifies as an investment\\n\\n An Adpack is an “investment.” Just as the citrus grove owner in Howey was\\n\\n“offering something more than fee simple interests in land, something different from\\n\\na farm or orchard coupled with management services,” 328 U.S. at 299, so, too,\\n\\nTraffic Monsoon was offering its Adpack purchasers something more than just\\n\\nadvertising services. Adpacks also offered the purchaser an opportunity to share in\\n\\nTraffic Monsoon’s revenue. Just as the land purchasers in Howey “had no desire to\\n\\n 27\\n\\foccupy the[ir] land or to develop it themselves” but were instead “attracted solely by\\n\\nthe prospects of a return on their investment,” id. At 300, so too the vast majority of\\n\\n$50 Adpack purchasers bought Adpacks, not to receive the same advertising services\\n\\nthey could have bought ala carte for $10.95, but instead to have the opportunity to\\n\\nshare in Traffic Monsoon’s revenue and earn significant returns. We agree with the\\n\\ndistrict court that\\n\\n [t]he evidence clearly points to the fact that Traffic Monsoon’s explosive\\n growth was driven by members purchasing and repurchasing Adpacks in\\n order to obtain the incredible returns on their investment, not by intense\\n demand for Traffic Monsoon’s [internet advertising] services. Indeed,\\n many Adpack purchasers had no interest in the website visits Traffic\\n Monsoon offered, and Traffic Monsoon only ever delivered a fraction of\\n the clicks it promised to deliver. In short, the economic reality of the\\n Adpack purchases is that they were investments.\\n\\n(Aplt. App. 2103 (bracketed material added).)\\n\\n Neither the fact that a few Adpack purchasers testified that they bought\\n\\nAdpacks for the advertising services, nor the fact that not every Adpack purchaser\\n\\nqualified to share revenue (although almost all of them did), prevents us from\\n\\ncharacterizing Adpacks as investments. See Howey, 328 U.S. at 300-01 (holding, in\\n\\nthe context of § 10(b), that Court’s conclusion that land sales and service contracts\\n\\namounted to an “investment contract” was “unaffected by the fact that some\\n\\npurchasers choose not to accept the full offer of an investment contract by declining\\n\\nto enter into a service contract with the” citrus grove owner).\\n\\n\\n\\n\\n 28\\n\\f 2. An Adpack involves a common enterprise\\n\\n An Adpack is an investment in “a common enterprise.” Just as the land\\n\\npurchasers in Howey bought the opportunity “to share in the profits of a large citrus\\n\\nfruit enterprise managed and partly owned by” the citrus grove owners, 328 U.S. at\\n\\n299, so Adpack purchasers bought the opportunity to share in revenue derived from\\n\\nthe sale of all of Traffic Monsoon’s advertising services. The revenue in which\\n\\nAdpack purchasers could share, then, was generated from a common enterprise,\\n\\nTraffic Monsoon’s sale of internet advertising services.\\n\\n 3. An Adpack provides members with a reasonable expectation of profit\\n derived from the entrepreneurial or management efforts of others\\n\\n Howey’s third requirement for an investment contract is that the investor “is\\n\\nled to expect profits solely from the efforts of the promoter or a third party.” 328\\n\\nU.S. at 298-99; see also Shields, 744 F.3d at 643 n.7 (applying this part of Howey’s\\n\\ninquiry to require that the consumer have “a reasonable expectation of profits to be\\n\\nderived from the entrepreneurial or managerial efforts of others” (internal quotation\\n\\nmarks omitted)).\\n\\n Scoville points out that, although the revenue Adpack purchasers share is\\n\\nderived from Defendants’ efforts to sell Traffic Monsoon’s advertising services, the\\n\\nreturns Adpack purchasers earn are also the result of purchasers’ own efforts in\\n\\nclicking on other members’ websites in order to qualify to share revenue. Although\\n\\nthe Supreme Court, in Howey, stated that the profits expected from an “investment\\n\\ncontract” should result “solely” from others’ efforts, 328 U.S. at 301, the Tenth\\n\\n\\n 29\\n\\fCircuit has held that “[i]nvestments satisfy the third prong of the Howey test when\\n\\nthe efforts made by those other than the investor are the ones which affect\\n\\nsignificantly the success or failure of the enterprise.” Shields, 744 F.3d at 645\\n\\n(internal quotation marks omitted); see also Crowley v. Montgomery Ward & Co.,\\n\\n570 F.2d 875, 877 (10th Cir. 1975).\\n\\n That is the case here. Adpack purchasers expected Traffic Monsoon’s success\\n\\nto turn “significantly” on the company’s efforts to sell its advertising services. See\\n\\ngenerally Miller v. Cent. Chinchilla Grp., Inc., 494 F.2d 414, 417 (8th Cir. 1974) (“In\\n\\ndetermining whether the plaintiffs’ contributions were nominal or significant, the\\n\\nissue is not what efforts, in fact, were required of them. Rather, it is what efforts the\\n\\nplaintiffs were reasonably led to believe were required of them at the time they\\n\\nentered into the contracts.”). Assuming Adpack purchasers expected to contribute to\\n\\nsome degree in the delivery of those services by clicking on other members’\\n\\nwebsites, Adpack purchasers did not expect their own efforts to be significant. No\\n\\nmatter how many Adpacks a member owned, the member expected to qualify to share\\n\\nrevenue on all of his or her Adpacks by spending only four minutes a day clicking on\\n\\nup to fifty ads. Moreover, there is evidence that receiving clicks on one’s website or\\n\\ninternet ad was not the motivation for the vast majority of Adpack purchasers;\\n\\nearning a 10% return on their investment was.\\n\\n Scoville further argues that Adpacks cannot be “investment contracts” because\\n\\nthere was never a “guarantee” that qualified Adpack purchasers would receive a share\\n\\nof Traffic Monsoon’s revenue because Traffic Monsoon’s obligation to share its\\n\\n 30\\n\\frevenue was contingent on there being revenue to share. But neither were the citrus\\n\\ngrove purchasers in Howey guaranteed a return on their investment in the citrus crop.\\n\\n328 U.S. at 296. So long as a transaction satisfies Howey’s test for an “investment\\n\\ncontract,” “it is immaterial whether the enterprise is speculative or non-speculative.”\\n\\nId. at 301. To qualify as an “investment contract,” the purchaser just has to have a\\n\\n“reasonable expectation of profits.” Shields, 744 F.3d at 642 n.7, 643; see, e.g.,\\n\\nEdwards, 540 U.S. at 395; see also SEC v. Int’l Loan Network, Inc. 968 F.2d 1304,\\n\\n1308 (D.C. Cir. 1992) (rejecting argument that investment program could not be an\\n\\n“investment contract” because no return was guaranteed; stating that “[v]ery few\\n\\ninvestments ‘guarantee’ a return—all that Howey requires is a ‘reasonable\\n\\nexpectation of profits’” (quoting Forman, 421 U.S. at 852)). The evidence here\\n\\nsupported Adpack purchasers’ reasonable expectation—based on the representations\\n\\nmade to them—of sharing Traffic Monsoon’s revenue. Although Traffic Monsoon’s\\n\\nwebsite stated there was no guarantee that there would always be revenue for\\n\\nqualifying members to share, it does not appear that there was ever a time, before the\\n\\nPayPal freeze, when a qualifying member did not receive purported shared revenue.\\n\\n 4. Conclusion: Adpacks qualify as investment contracts\\n\\n For these reasons, then, the district court did not err in concluding that\\n\\nAdpacks meet Howey’s three-part test and, therefore, qualify as “investment\\n\\ncontracts” and, thus, as securities subject to regulation under the federal securities\\n\\nlaws.\\n\\n\\n\\n 31\\n\\fC. It is likely that the SEC can prove that Defendants’ conduct violated the\\nantifraud provisions of federal securities laws\\n\\n Scoville asserts that the district court abused its discretion in determining that\\n\\nthe SEC can likely establish that Defendants violated the antifraud statutes. Scoville\\n\\ntakes aim at two requisite elements of Defendants’ liability.\\n\\n 1. Defendants were operating a Ponzi scheme\\n\\n The antifraud statutes apply to fraudulent schemes involving securities.8 The\\n\\ndistrict court held that the SEC will likely succeed in proving that Defendants were\\n\\ninvolved in such a fraudulent scheme because Defendants were operating a Ponzi\\n\\nscheme, which is “inherently deceptive because it generates a false appearance of\\n\\nprofitability by using money from new investors to generate returns for earlier\\n\\ninvestors.” (Aplt. App. 2099 (citing Mukamal v. Gen. Elec. Capital Corp. (In re\\n\\nPalm Beach Fin. Partners, L.P.), 517 B.R. 310, 346 (Bankr. S.D. Fla. 2013)).)\\n\\n Scoville counters that the SEC cannot prove that Defendants were operating a\\n\\nPonzi scheme. But there is strong evidence that that is exactly what Defendants were\\n\\ndoing.\\n\\n\\n8\\n More precisely, § 17(a)(1) prohibits “any device, scheme, or artifice to defraud” in\\n“the offer or sale of any securities.” 15 U.S.C. § 77q(a)(1). Section 17(a)(3) also\\napplies to “the offer or sale of any securities,” and prohibits “engag[ing] in any\\ntransaction, practice, or course of business which operates or would operate as a\\nfraud or deceit upon the purchaser.” Id. § 77q(a)(3). Section 10(b) addresses the use\\nof “any manipulative or deceptive device or contrivance” “in connection with the\\npurchase or sale of any security.” Id. § 78j(b). SEC Rule 10b-5(a) and (c) apply “in\\nconnection with the purchase or sale of any security,” and prohibit using “any device,\\nscheme, or artifice to defraud,” and “engag[ing] in any act, practice, or course of\\nbusiness which operates or would operate as a fraud or deceit upon any person.” 17\\nC.F.R. § 240.10b-5(a), (c).\\n 32\\n\\f The Tenth Circuit has offered several different definitions of a Ponzi scheme,\\n\\nbut the district court captured the gist of those definitions in noting that “the central\\n\\ncharacteristic of a Ponzi scheme is that returns are not based upon any underlying\\n\\nbusiness activity. Instead, money from new investors is used to pay earlier\\n\\ninvestors.” (Aplt. App. 2097.) See Thompson, 732 F.3d at 1154 n.3; Wilcox, 691\\n\\nF.3d at 1173 n.2. In addition, in a Ponzi scheme often the “money contributed by\\n\\nlater investors generates artificially high dividends for the original investors, whose\\n\\nexample attracts even larger investments.” Wilcox, 691 F.3d at 1173 n.2.\\n\\n The district court did not abuse its discretion in determining that the SEC is\\n\\nlikely to prove Defendants were operating a Ponzi scheme. For every $50 Adpack it\\n\\nsold, Traffic Monsoon often had to pay out $55 to qualifying purchasers, and even\\n\\n$60 if the purchaser had been recruited by another Traffic Monsoon member. Traffic\\n\\nMonsoon paid these amounts from sales of new Adpacks; there was essentially no\\n\\nother business activity generating the revenue Traffic Monsoon was sharing with\\n\\nqualifying Adpack purchasers. Furthermore, Traffic Monsoon misrepresented to its\\n\\nAdpack purchasers that the revenue it was sharing came from sales of all of Traffic\\n\\nMonsoon’s other advertising services, which Traffic Monsoon falsely indicated were\\n\\nmore popular than its Adpacks. Thus, the record evidence would support finding that\\n\\nDefendants were offering the possibility of high rates of return on qualifying\\n\\nAdpacks and paying those returns using money from later Adpack sales. In light of\\n\\nthis evidence, it was likely the SEC will be able to show that Defendants were\\n\\n\\n\\n 33\\n\\foperating a Ponzi scheme and thus, be able to prove that Defendants used fraud or\\n\\ndeception to sell, or offer to sell, Adpacks.\\n\\n Scoville’s arguments to the contrary are unavailing. For example, although he\\n\\nreasserts his argument that Traffic Monsoon was only selling advertising services, as\\n\\npreviously discussed, the vast majority of Adpack purchasers were not seeking to buy\\n\\ninternet advertising services but were, instead, seeking a significant return on their\\n\\n$50-per-Adpack investment. Moreover, Defendants may still be operating a Ponzi\\n\\nscheme even if they have “some legitimate business operations.” Gillman v. Geis (In\\n\\nre Twin Peaks Fin. Servs., Inc.), 516 B.R. 651, 655 (Bankr. D. Utah 2014); see also\\n\\nMiller v. Wulf, 84 F. Supp. 3d 1266, 1272 & n.45 (D. Utah 2015).\\n\\n Neither does Scoville’s assertion—that before an Adpack purchaser could\\n\\nshare in Traffic Monsoon’s revenue, he had to qualify by clicking on other members’\\n\\nwebsites for four minutes on a given day and then there had to be revenue Traffic\\n\\nMonsoon generated in the preceding twenty-four hours—prevent the district court’s\\n\\ndetermination that Defendants were running a Ponzi scheme. Even though\\n\\nDefendants disclosed these requisite conditions for an Adpack purchaser to share in\\n\\nTraffic Monsoon’s revenue, there is evidence that Defendants deceived purchasers by\\n\\ntelling them that the revenue to be shared was generated by Traffic Monsoon’s other\\n\\n\\n\\n\\n 34\\n\\fadvertising services that were more popular than Adpacks. Instead, essentially all of\\n\\nthe revenue to be shared was generated by the sale of additional Adpacks.9\\n\\n Lastly, Scoville argues that Defendants did not expressly limit returns on\\n\\nAdpacks only to the original purchasers. And he contends that none of its members\\n\\nhad ever suffered a loss. But the fact that this Ponzi scheme had not yet imploded\\n\\ndoes not mean Defendants were not running a Ponzi scheme.\\n\\n 2. Scienter\\n\\n In a related argument, Scoville next asserts that the SEC will not be able to\\n\\nestablish that Defendants acted with the requisite scienter. We disagree.\\n\\n Sections 10(b) and 17(a)(1) require proof that Defendants acted with the\\n\\n“intent to deceive, manipulate, or defraud.” Aaron v. SEC, 446 U.S. 680, 686 & n.5,\\n\\n695-97 (1980) (quoting Ernst & Ernst v. Hochfelder, 425 U.S 185, 194 & n.12\\n\\n(1976)). (No scienter is required under § 17(a)(3). See Aaron, 446 U.S. at 695-96.)\\n\\nThe district court correctly held that this scienter is likely established in this case by\\n\\nthe fact that Defendants were operating a Ponzi scheme, which again is “inherently\\n\\ndeceptive because it generates a false appearance of profitability by using money\\n\\nfrom new investors to generate returns for earlier investors.” (Aplt. App. 2099\\n\\n(citing In re Palm Beach Fin. Partners, 517 B.R. at 346).).10\\n\\n\\n9\\n In light of this crucial deception, we reject, at this point in the case, Scoville’s\\nassertion that Defendants were not operating a Ponzi scheme because “Traffic\\nMonsoon has fully disclosed everything to its members.” (Aplt. Br. 52.)\\n10\\n Scoville incorrectly asserts that the district court never addressed Defendants’\\nscienter.\\n 35\\n\\fD. Traffic Monsoon’s revenue generated from the sale of its other advertising\\nservices is properly subject to the district court’s preliminary orders\\n\\n Lastly, Scoville asserts that, “[a]t a minimum, the Court should order the\\n\\nDistrict Court to release the [currently frozen] Traffic Monsoon funds that are\\n\\nadmittedly outside the scope of any of the SEC’s claims.” (Aplt. Br. 53 (bracketed\\n\\nmaterial added).) Scoville refers to the approximately $3 million that Traffic\\n\\nMonsoon earned from September 2014 through July 2016 from the sale of its internet\\n\\nadvertising services other than Adpacks. But it is not clear, as Scoville asserts, that\\n\\nthese other sales are “outside the scope of any of the SEC’s claims.” Id. The\\n\\nrevenue to be shared with qualifying Adpack purchasers was generated from the sale\\n\\nof all of Traffic Monsoon’s advertising services. Further, Traffic Monsoon had no\\n\\naccounting records; its revenue apparently was pooled together and Adpack\\n\\npurchasers were paid from that pool. In light of this evidence, Scoville has not\\n\\nshown that the district court abused its discretion in preliminarily freezing all of\\n\\nTraffic Monsoon’s funds and placing them in the receivership.11\\n\\n V. CONCLUSION\\n\\n For the foregoing reasons, we AFFIRM in all respects the district court’s\\n\\nchallenged preliminary decisions in this civil enforcement action. Although early in\\n\\n\\n\\n\\n11\\n The issue of whether Scoville should personally be liable under the antifraud\\nprovisions has not been adequately raised before us, nor adequately preserved below.\\nAccordingly, we decline to address that issue.\\n 36\\n\\fthis civil enforcement action, the SEC has established the likelihood that it will\\n\\nsucceed on its antifraud claims against Defendants.12\\n\\n\\n\\n\\n12\\n Once our mandate has issued, the Court will direct the parties to address the status\\nof the related appeal, No. 18-4038.\\n 37\\n\\f17-4059, SEC v. Traffic Monsoon LLC\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":387,"cells":{"id":{"kind":"number","value":4584360,"string":"4,584,360"},"name":{"kind":"string","value":"Randy CUMMINGS ; Cruz Gallegos ; Robert J. Garcia ; Richard Gonzales; Eloy A. Jaramillo; David Larranaga; Joseph Lopez; Rick Lopez ; David Montano; Angelo Rinaldi ; Chris Sweeney ; Josh Tillinghast; Tomas Trujillo; Jeffrey S. Wade; Joshua Hoselton; Charles W. Lees; Jaime Marquez ; Robert Mendoza; Armando Anchondo; Gustavo Berrospe; Reyes Cabriales; Sergio Escobedo ; Jason Head; Nick Hinojos; Robert G. Hitzman; Michael Lopez; Jose Rodriguez; Sergio A. Rojo; Richard Tenorio; Cesar Torres ; Grant Willis; Harold Brown; Rene Carrillo; Henry Nez, Jr.; Kurt Johnson; Jesus Aguilar-Murillo; Martin F. Alvarez; Arthur Archuleta; Enrique Corona; Ronald Hubbard ; Andrew M. Lugo; Henry Lujan ; David Carr; D. Jeremiah Cordova; Kevin Charvea; Nathan Espalin; Levi Gutierrez; Dennis Moore; Robert Moreno ; Levi Olivas; Thomas D. Payne; Bryan Wheeler, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellees/Cross-Appellants, v. Jason DEAN, as the Director of the Labor Relations Division of the New Mexico Department of Workforce Solutions, in His Individual Capacity, Defendant-Appellant/Cross-Appellee and Celina Bussey, Secretary of the New Mexico Department of Workforce Solutions, in Her Individual Capacity, Defendant/Cross-Appellee."},"name_abbreviation":{"kind":"string","value":"Cummings v. Dean"},"decision_date":{"kind":"string","value":"2019-01-24"},"docket_number":{"kind":"string","value":"17-2072 & 17-2079"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Lucero, Holmes, Eid\", \"parties\": \"\", \"opinions\": [{\"author\": \"HOLMES, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n Tenth Circuit\\n\\n January 24, 2019\\n PUBLISH\\n Elisabeth A. Shumaker\\n UNITED STATES COURT OF APPEALS Clerk of Court\\n\\n TENTH CIRCUIT\\n\\n\\n\\nRANDY CUMMINGS; CRUZ\\nGALLEGOS; ROBERT J. GARCIA;\\nRICHARD GONZALES; ELOY A.\\nJARAMILLO; DAVID\\nLARRANAGA; JOSEPH LOPEZ;\\nRICK LOPEZ; DAVID MONTANO;\\nANGELO RINALDI; CHRIS\\nSWEENEY; JOSH TILLINGHAST;\\nTOMAS TRUJILLO; JEFFREY S.\\nWADE; JOSHUA HOSELTON;\\nCHARLES W. LEES; JAIME\\nMARQUEZ; ROBERT MENDOZA;\\nARMANDO ANCHONDO;\\nGUSTAVO BERROSPE; REYES\\nCABRIALES; SERGIO ESCOBEDO;\\nJASON HEAD; NICK HINOJOS;\\nROBERT G. HITZMAN; MICHAEL\\nLOPEZ; JOSE RODRIGUEZ;\\nSERGIO A. ROJO; RICHARD\\nTENORIO; CESAR TORRES;\\nGRANT WILLIS; HAROLD BROWN;\\nRENE CARRILLO; HENRY NEZ,\\nJR.; KURT JOHNSON; JESUS\\nAGUILAR-MURILLO; MARTIN F.\\nALVAREZ; ARTHUR ARCHULETA;\\nENRIQUE CORONA; RONALD\\nHUBBARD; ANDREW M. LUGO;\\nHENRY LUJAN; DAVID CARR; D.\\nJEREMIAH CORDOVA; KEVIN\\nCHARVEA; NATHAN ESPALIN;\\nLEVI GUTIERREZ; DENNIS\\nMOORE; ROBERT MORENO; LEVI\\nOLIVAS; THOMAS D. PAYNE;\\nBRYAN WHEELER, on behalf of\\nthemselves and all others similarly\\n\\f situated,\\n\\n Plaintiffs - Appellees/Cross-\\n Appellants,\\n v. Nos. 17-2072 & 17-2079\\n JASON DEAN, as the Director of the\\n Labor Relations Division of the New\\n Mexico Department of Workforce\\n Solutions, in his individual capacity,\\n\\n Defendant - Appellant/Cross-\\n Appellee\\n\\n and\\n\\n CELINA BUSSEY, Secretary of the\\n New Mexico Department of Workforce\\n Solutions, in her individual capacity,\\n\\n Defendant/Cross-Appellee.\\n\\n\\n Appeal from the United States District Court\\n for the District of New Mexico\\n (D.C. No. 1:16-CV-00951-JAP-KK)\\n\\n\\nThomas Bird, Keleher & McLeod, P.A., Albuquerque, New Mexico (Jason J.\\nLewis, Law Office of Jason J. Lewis, LLC, Albuquerque, New Mexico; Marshall\\nJ. Ray, Law Offices of Marshall J. Ray, LLC, Albuquerque, New Mexico; and\\nSean Olivas, Keleher & McLeod, P.A., Albuquerque, New Mexico, on the briefs),\\nfor Defendant - Appellant/Cross-Appellee and Defendant/Cross-Appellee.\\n\\nShane Youtz (James A. Montalbano and Stephen Curtice, with him on the briefs),\\nYoutz & Valdez, P.C., Albuquerque, New Mexico, for Plaintiffs - Appellees\\n/Cross-Appellants.\\n\\n\\nBefore LUCERO, HOLMES, and EID, Circuit Judges.\\n\\n 2\\n\\fHOLMES, Circuit Judge.\\n\\n\\n Jason Dean, director of the Labor Relations Division of the New Mexico\\n\\nDepartment of Workforce Solutions (“DWS”), raises this appeal from the district\\n\\ncourt’s denial of qualified immunity against the claim that he violated Plaintiffs’\\n\\nconstitutional rights to substantive due process by failing to issue prevailing rates\\n\\nfor wages and fringe benefits as required by New Mexico law.\\n\\n In the action below, Plaintiffs, individuals who worked on public works\\n\\nprojects in New Mexico, filed claims under 42 U.S.C. § 1983 on behalf of\\n\\nthemselves and others similarly situated, alleging that Director Dean and Celina\\n\\nBussey, secretary of the DWS, violated Plaintiffs’ procedural and substantive\\n\\ndue-process rights by failing to determine prevailing rates for wages and fringe\\n\\nbenefits in contravention of the New Mexico Public Works Minimum Wage Act\\n\\n(“Act”), N.M. S TAT . A NN . § 13-4-11(B) (West 2009). Plaintiffs alleged that, as a\\n\\nresult of this failure, from 2009 to 2015 they did not receive the rates to which\\n\\nthey were entitled under the Act.\\n\\n Defendants filed a motion to dismiss, claiming qualified immunity. The\\n\\ndistrict court granted it in part and denied it in part. Specifically, the district\\n\\ncourt granted the motion in its entirety as to Secretary Bussey, and as to\\n\\nPlaintiffs’ procedural due-process claim against Director Dean. However, the\\n\\n\\n 3\\n\\fcourt denied the motion with respect to Director Dean on Plaintiffs’ substantive\\n\\ndue-process claim.\\n\\n Both parties now appeal from the district court’s ruling. In Case No. 17-\\n\\n2072, Director Dean appeals from the court’s denial of qualified immunity as to\\n\\nPlaintiffs’ substantive due-process claim, while in Case No. 17-2079, Plaintiffs\\n\\ncross-appeal the district court’s dismissal of (1) their claims against Secretary\\n\\nBussey, and (2) their claim against Director Dean for violation of their procedural\\n\\ndue-process rights.\\n\\n For the reasons stated below, we dismiss Plaintiffs’ cross-appeal, Case No.\\n\\n17-2079, for lack of jurisdiction, and reverse and remand the district court’s\\n\\ndenial of qualified immunity as to Director Dean on Plaintiffs’ substantive\\n\\ndue-process claim in Case No. 17-2072.\\n\\n I\\n\\n We first present the state statutory context for Plaintiffs’ claims and then\\n\\nreview the relevant facts.\\n\\n A\\n\\n Every contract for public works in New Mexico in excess of\\n\\n$60,000—including those involving construction and demolition—is required to\\n\\nstate the minimum wages and fringe benefits for all tradespeople that work on a\\n\\nparticular project. The director of the Labor Relations Division of DWS (“the\\n\\ndirector”) is tasked with publishing a schedule of minimum wages and fringe\\n\\n 4\\n\\fbenefits for such laborers and mechanics. Generally, Plaintiffs are individuals\\n\\nwho worked on public-works projects in New Mexico during the three years prior\\n\\nto the date of the filing of their lawsuit on August 23, 2016.\\n\\n Prior to 2009, § 13-4-11(B) of the Act provided:\\n\\n [The director] shall conduct a continuing program for the\\n obtaining and compiling of wage-rate information and shall\\n encourage the voluntary submission of wage-rate data by\\n contractors, contractors’ associations, labor organizations,\\n interested persons and public officers. Before making a\\n determination of wage rates for any project, the director shall\\n give due regard to the information thus obtained. Whenever the\\n director deems that the data at hand are insufficient to make a\\n wage determination, the director may have a field survey\\n conducted for the purpose of obtaining sufficient information\\n upon which to make [a] determination of wage rates. Any\\n interested person shall have the right to submit to the director\\n written data, views and arguments why the wage determination\\n should be changed.\\n\\nN.M. S TAT . A NN . § 13-4-11(B) (West 2005). In 2009, § 13-4-11(B) of the Act\\n\\nwas amended to state:\\n\\n The director shall determine prevailing wage rates and prevailing\\n fringe benefit rates for respective classes of laborers and\\n mechanics employed on public works projects at the same wage\\n rates and fringe benefit rates used in collective bargaining\\n agreements between labor organizations and their signatory\\n employers that govern predominantly similar classes or\\n classifications of laborers and mechanics for the locality of the\\n public works project and the crafts involved; provided that:\\n\\n (1) if the prevailing wage rates and prevailing fringe benefit\\n rates cannot reasonably and fairly be determined in a\\n locality because no collective bargaining agreements exist,\\n the director shall determine the prevailing wage rates and\\n prevailing fringe benefit rates for the same or most similar\\n\\n 5\\n\\f class or classification of laborer or mechanic in the nearest\\n and most similar neighboring locality in which collective\\n bargaining agreements exist;\\n\\n (2) the director shall give due regard to information obtained\\n during the director’s determination of the prevailing wage\\n rates and the prevailing fringe benefit rates made pursuant\\n to this subsection;\\n\\n (3) any interested person shall have the right to submit to the\\n director written data, personal opinions and arguments\\n supporting changes to the prevailing wage rate and\\n prevailing fringe benefit rate determination; and\\n\\n (4) prevailing wage rates and prevailing fringe benefit rates\\n determined pursuant to the provisions of this section shall\\n be compiled as official records and kept on file in the\\n director’s office and the records shall be updated in\\n accordance with the applicable rates used in subsequent\\n collective bargaining agreements.\\n\\nN.M. S TAT . A NN . § 13-4-11(B) (West 2009) [hereinafter “the 2009\\n\\nAmendments”].\\n\\n The 2009 Amendments had the primary effect of requiring the director to\\n\\ndetermine the prevailing rates based on the wage rates and fringe-benefit rates\\n\\nused in collective bargaining agreements (“CBAs”), as opposed to the earlier\\n\\nversion of the statute’s mandate to simply collect data for the “purpose of\\n\\nobtaining sufficient information upon which to make [a] determination of wage\\n\\nrates.” N.M. S TAT . A NN . § 13-4-11(B) (West 2005); see also Aplt.’s App.\\n\\nat 151–52 (Mem. Op. & Order, dated Apr. 20, 2017).\\n\\n B\\n\\n\\n 6\\n\\f By April 2011—almost two years after the 2009 Amendments came into\\n\\nforce—the director still had not set prevailing-wage rates according to the CBAs.\\n\\nThe New Mexico Building and Construction Trades Council (“NMBCTC”), “an\\n\\nalliance of craft unions” that represent New Mexico public workers, N.M. Bldg. &\\n\\nConstr. Trades Council v. Dean, 353 P.3d 1212, 1214 (N.M. 2015), filed a\\n\\nPetition for Writ of Mandamus in the New Mexico Supreme Court requesting that\\n\\nthe court compel the director to set prevailing wage and prevailing benefit rates in\\n\\naccordance with relevant CBAs. The New Mexico Supreme Court denied the\\n\\nwrit, but did so on the basis of a representation by the DWS secretary’s (“the\\n\\nsecretary”) counsel that the secretary would set new rates within four or five\\n\\nmonths. See id. (quoting counsel’s statement during oral arguments in 2011: “I\\n\\nwould say [setting the rates] could conceivably be done in four or five months,\\n\\nwhich I don’t think is unreasonable, especially since the secretary has assured me,\\n\\nand I’m assuring the Court, that she’s intent on getting this done. I don’t think it\\n\\nrequires a writ of mandamus to get it done. But, whatever the Court desires, I’m\\n\\nconfident she’ll get it done.”).\\n\\n Despite this assurance from the secretary’s counsel, the secretary did not\\n\\nset new prevailing wage or prevailing benefit rates, even though in 2012 she\\n\\noversaw the promulgation of new regulations and the amendment of others as\\n\\nrequired by the Act. Id. at 1214–15. The NMBCTC challenged these new\\n\\nregulations before the New Mexico Labor and Industrial Commission (“LIC”).\\n\\n 7\\n\\fTypically, a challenge to a new regulation filed with the LIC stays the\\n\\nimplementation of that regulation pending resolution of the challenge, see N.M.\\n\\nC ODE R. § 11.1.2.17(B)(1), but the NMBCTC requested that the LIC waive the\\n\\nautomatic stay if necessary to allow the DWS to proceed with determining new\\n\\nprevailing rates:\\n\\n Pursuant to [N.M. C ODE R. § 11.1.2.17(B)(1)], Appellant waives\\n its right to stay the effectiveness of the new rules through the\\n filing of this appeal as those rules relate to the determination of\\n new prevailing rates to replace the rates currently in effect. . . .\\n Appellant desires the Department to update the prevailing rates\\n in some manner as soon as possible given that the current rates\\n are based on 2009 data and have not been updated for more than\\n two years. If necessary, Appellant requests the Commission to\\n waive the automatic stay as herein described as well.\\n\\nAplt.’s App. at 106 (Ex. E, Notice of Appeal, dated Mar. 27, 2012). The LIC\\n\\ndenied the NMBCTC’s challenge, and the NMBCTC appealed that decision to the\\n\\nstate district court. The LIC did not act to lift the automatic stay at any point\\n\\nduring these proceedings.\\n\\n While the appeal to the state district court was pending, and in light of the\\n\\ndirector’s continued failure to determine updated rates, the NMBCTC filed a\\n\\nsecond Petition for Writ of Mandamus in the New Mexico Supreme Court in\\n\\n2015. The NMBCTC again requested that the New Mexico Supreme Court order\\n\\nthe director to determine the rates as required under the Act. The court this time\\n\\ngranted the writ, stating:\\n\\n\\n\\n\\n 8\\n\\f We hold that under the Act the Director has a mandatory,\\n nondiscretionary duty to set the same prevailing wage and\\n prevailing benefit rates as those negotiated in applicable CBAs\\n and that the Director’s failure to do so violates the Act. We\\n therefore issue a writ of mandamus ordering the Director to\\n comply with the Act and set rates in accordance with CBAs as\\n required under the Act within thirty days of the issuance of this\\n opinion.\\n\\nDean, 353 P.3d at 1214.\\n\\n C\\n\\n Plaintiffs filed the present suit in federal court alleging that they suffered\\n\\nfinancial harm due to Defendants’ failure to determine the prevailing rates in\\n\\naccordance with the 2009 Amendments. Specifically, they allege that the wages\\n\\nand benefits they received, which were based on the pre-2009 Amendment\\n\\ndeterminations, “were less than would have been received had Defendants issued\\n\\nprevailing wage rate and prevailing fringe benefit determinations in accordance\\n\\nwith the . . . Act as amended in 2009.” Aplt.’s App. at 44 (First Am. Compl.,\\n\\ndated Aug. 23, 2016).\\n\\n Pursuant to Federal Rule of Civil Procedure 12(c) (“Rule 12(c)”),\\n\\nDefendants sought judgment on the pleadings with respect to Plaintiff’s amended\\n\\ncomplaint—the operative complaint for our purposes—on qualified-immunity\\n\\ngrounds. The district court granted the motion in its entirety with respect to\\n\\nSecretary Bussey since Plaintiffs had failed to allege the necessary “‘affirmative\\n\\nlink’ demonstrating that Bussey authorized or approved of Dean’s noncompliance\\n\\n\\n 9\\n\\fwith the Act.” Aplt.’s App. at 159 (quoting Dodds v. Richardson, 614 F.3d 1185,\\n\\n1200–01 (10th Cir. 2010)).\\n\\n The court then considered Plaintiffs’ constitutional claims against Director\\n\\nDean. With respect to the procedural due-process claim, the court first\\n\\ndetermined that Plaintiffs had a protected property interest in CBA-level rates\\n\\nunder the Act, giving rise to restrictions on the director’s discretion in\\n\\ndetermining prevailing rates. However, the court noted that “more is\\n\\nrequired—Plaintiffs must show that they were deprived of the [property] interest\\n\\nwithout an adequate process by which they could obtain review of the\\n\\ndeprivation.” Id. at 160 (emphasis added). The court then stated that Plaintiffs\\n\\nfailed to establish that the processes available to challenge the director’s inaction\\n\\nwere constitutionally inadequate, in part because Plaintiffs did “not allege\\n\\nanywhere in the Complaint that they lacked the opportunity to challenge the 2009\\n\\nrates used by the Director.” Id. at 160–61. Accordingly, the court dismissed the\\n\\nprocedural due-process claim against Director Dean.\\n\\n The district court denied Defendants’ motion to dismiss Plaintiffs’\\n\\nsubstantive due-process claim against Director Dean, however. The court\\n\\nreasoned that the failure to set new rates, despite the assurance provided by the\\n\\nsecretary’s counsel during oral arguments before the New Mexico Supreme Court,\\n\\nwas sufficient to show that the director deliberately and arbitrarily deprived\\n\\nPlaintiffs of a protected property right. Furthermore, the court stated the director\\n\\n 10\\n\\fviolated clearly-established law by depriving Plaintiffs of the wages and benefits\\n\\nto which they were entitled under the Act. According to the court, Plaintiffs’\\n\\nright to CBA-based wages and benefits was clearly established by the statute\\n\\nitself given that the plain language of the 2009 Amendments was susceptible to\\n\\nonly one reading—“that it guarantees that [the] minimum wage and benefit rates\\n\\nmust be equivalent to the rates negotiated in CBAs.” Id. at 166.\\n\\n Director Dean appealed, and Plaintiffs cross-appealed the dismissal of their\\n\\nclaims against Secretary Bussey and their procedural due-process claim against\\n\\nDirector Dean.\\n\\n II\\n\\n As in every matter, we must consider whether we have jurisdiction over all\\n\\naspects of this appeal. See Cellport Sys., Inc. v. Peiker Acustic GMBH & Co. KG,\\n\\n762 F.3d 1016, 1021 (10th Cir. 2014) (“It is our obligation always to be certain of\\n\\nour subject matter jurisdiction.” (quoting Russo v. Ballard Med. Prods., 550 F.3d\\n\\n1004, 1009 (10th Cir. 2008))).\\n\\n A\\n\\n With respect to Director Dean’s appeal in Case No. 17-2072, we exercise\\n\\njurisdiction over the district court’s denial of his qualified-immunity defense\\n\\npursuant to 28 U.S.C. § 1291. See Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009)\\n\\n(“[T]his Court has been careful to say that a district court’s order rejecting\\n\\nqualified immunity at the motion-to-dismiss stage of a proceeding is a ‘final\\n\\n 11\\n\\fdecision’ within the meaning of § 1291.”); accord Brown v. Montoya, 662 F.3d\\n\\n1152, 1162 (10th Cir. 2011).\\n\\n B\\n\\n Our jurisdiction to hear Plaintiffs’ cross-appeal in Case No. 17-2079 is less\\n\\nclear. We ultimately conclude that we do not have jurisdiction to hear this\\n\\nappeal.\\n\\n We normally lack jurisdiction over a partial dismissal of a complaint\\n\\nbecause such dismissals do not constitute final, appealable decisions under\\n\\n§ 1291. See McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1104 (10th Cir.\\n\\n2002) (“Because the dismissal . . . adjudicated fewer than all the claims and\\n\\nliabilities of all the parties, it was not a final appealable order . . . .”). However,\\n\\nthe discretionary doctrine of pendent appellate jurisdiction provides an exception\\n\\nto this rule, allowing us to exercise jurisdiction over an “otherwise nonfinal and\\n\\nnonappealable lower court decision that overlaps with an appealable decision.”\\n\\nCox v. Glanz, 800 F.3d 1231, 1255 (10th Cir. 2015) (quoting Moore v. City of\\n\\nWynnewood, 57 F.3d 924, 929 (10th Cir. 1995)).\\n\\n Our exercise of pendent jurisdiction is “only appropriate” in either of two\\n\\nscenarios: (1) “when ‘the otherwise nonappealable decision is inextricably\\n\\nintertwined with the appealable decision,’” or (2) “where review of the\\n\\nnonappealable decision is necessary to ensure meaningful review of the\\n\\nappealable one.” Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1148 (10th\\n\\n 12\\n\\fCir. 2011) (quoting Tarrant Reg’l Water Dist. v. Sevenoaks, 545 F.3d 906, 915\\n\\n(10th Cir. 2008)).\\n\\n Plaintiffs face several obstacles in establishing pendent jurisdiction over\\n\\ntheir cross-appeal. First, the exercise of pendent jurisdiction is generally\\n\\ndisfavored as applied to cases in which primary appellate jurisdiction is based on\\n\\nthe denial of qualified immunity. See Cox, 800 F.3d at 1255; accord Bryson v.\\n\\nGonzales, 534 F.3d 1282, 1285–86 (10th Cir. 2008). After all, the collateral order\\n\\ndoctrine, used to appeal from denials of qualified immunity, “is premised on the\\n\\nability to decide the qualified immunity issue ‘in isolation from the remaining\\n\\nissues of the case,’” making it “hard to reconcile” with pendent jurisdiction.\\n\\nBryson, 534 F.3d at 1285 (quoting Mitchell v. Forsyth, 472 U.S. 511, 529 n.10\\n\\n(1985)).\\n\\n Moreover, Plaintiffs’ briefing does not adequately support their assertion\\n\\nthat we may exercise pendent jurisdiction over their claims. And it is beyond\\n\\nperadventure that it is Plaintiffs’ burden to make such a jurisdictional showing.\\n\\nSee, e.g., Raley v. Hyundai Motor Co., 642 F.3d 1271, 1275 (10th Cir. 2011)\\n\\n(“Where an appellant fails to lead, we have no duty to follow. It is the\\n\\nappellant’s burden, not ours, to conjure up possible theories to invoke our legal\\n\\nauthority to hear her appeal.”); accord E.E.O.C. v. PJ Utah, LLC, 822 F.3d 536,\\n\\n542 n.7 (10th Cir. 2016). Their entire argument on this threshold matter consists\\n\\nof a single conclusory sentence found in, respectively, their opening and reply\\n\\n\\n 13\\n\\fbriefs. See Pls.’ Resp. Br. at 1 (contending that this court “could, and should,\\n\\nassert pendent jurisdiction over [this] cross-appeal”); accord Pls.’ Reply Br. at 1. 1\\n\\nPlaintiffs present no analysis or argument to support either acceptable basis for\\n\\ngranting relief—viz., that their claims on cross-appeal are “inextricably\\n\\nintertwined” with the director’s appeal, or that consideration of their cross-appeal\\n\\nis “necessary for a full assessment of the appealable issue.” Crowe & Dunlevy,\\n\\n640 F.3d at 1148 (quoting Sevenoaks, 545 F.3d at 915). 2 By providing us with\\n\\n\\n 1\\n To avoid confusion in this consolidated appeal and cross-appeal, we\\nrefer to the parties’ briefs as follows:\\n\\n• Defendant/Appellant Jason Dean’s Brief in Chief = Def.’s Opening Br.\\n• Appellees’ Principal and Response Brief = Pls.’ Resp. Br.\\n• Defendant/Appellant Jason Dean’s and Defendant/Cross-Appellee’s\\n Response and Reply Brief = Defs.’ Reply Br.\\n• Appellees’ Reply Br. = Pls.’ Reply Br.\\n 2\\n Rather, Plaintiffs assert without analysis that this court “has\\npend[e]nt jurisdiction” over their claims in light of Primas v. City of Oklahoma\\nCity, 958 F.2d 1506 (10th Cir. 1992), a case involving a number of appeals\\nrelating to a civil-rights action brought by a former city employee against the city\\nand city officials. Pls.’ Reply Br. at 1. There, this court exercised pendent\\njurisdiction over a cross-appeal from an interlocutory appeal of a denial of\\nqualified immunity, concluding that the pendent claim—an appeal from the\\ndistrict court’s determination that the plaintiff did not have a property interest in\\ncontinued employment with the city—involved issues that were “factually and\\nlegally intertwined with the [non-pendent] issues on appeal” that the city officials\\nraised. Primas, 958 F.2d at 1512. To be sure, the cases that the Primas court\\nrelied upon in coming to this conclusion employed the aforementioned pendent-\\njurisdiction framework: they considered whether the appeals were inextricably\\nintertwined or whether reviewing the pendent issue was required to adequately\\nassess the appealable issue. See Micro Motion, Inc. v. Kane Steel Co., 894 F.2d\\n1318, 1320 (Fed. Cir. 1990); Barrett v. United States, 798 F.2d 565, 571 (2d Cir.\\n1986). As such, by relying on Primas, Plaintiffs do point us in the direction of\\n (continued...)\\n\\n 14\\n\\fbare assertions rather than analytical guidance, Plaintiffs effectively ask us to\\n\\n“make arguments for [them] that [they] did not make in [their appellate] briefs,”\\n\\nwhich we “will not” do. 3 Cox, 800 F.3d at 1256 (quoting O’Neal v. Ferguson\\n\\nConstr. Co., 237 F.3d 1248, 1257 n.1 (10th Cir. 2001)).\\n\\n Finally, even were we to overlook Plaintiffs’ failure to argue within the\\n\\npendent-jurisdiction framework, we would conclude that their claims do not\\n\\npresent either of the two scenarios where pendent jurisdiction may be\\n\\nappropriately exercised. With respect to Plaintiffs’ appeal of the district court’s\\n\\ndismissal of all claims against Secretary Bussey, the relevant question on appeal\\n\\nis whether Plaintiffs’ amended complaint adequately identified an “affirmative\\n\\nlink” between Secretary Bussey and the alleged deprivations in this case. Pls.’\\n\\nResp. Br. at 26. It is manifest that this question is not “inextricably intertwined”\\n\\nwith the appealable issue before us, i.e., whether Director Dean is entitled to\\n\\nqualified immunity as to Plaintiffs’ substantive due-process claim. Crowe &\\n\\nDunlevy, 640 F.3d at 1148 (“A pendent claim may be considered ‘inextricably\\n\\n\\n\\n 2\\n (...continued)\\nthe required analysis. But Plaintiffs do not actually apply that analysis to the\\nfacts of this case, and we will not do it for them.\\n 3\\n The director did not address pendent jurisdiction in his briefing.\\nUnlike Plaintiffs’ failure to argue within the pendent-jurisdiction framework,\\nhowever, the director’s “silence on the matter is of no moment,” Cox, 800 F.3d\\nat 1257 n.13, as we have an independent obligation to inquire into our own\\njurisdiction regardless of whether it is challenged, see United States v. Battles,\\n745 F.3d 436, 447 (10th Cir. 2014).\\n\\n 15\\n\\fintertwined’ only if it is ‘coterminous with, or subsumed in, the claim before the\\n\\ncourt on interlocutory appeal—that is, when the appellate resolution of the\\n\\ncollateral appeal necessarily resolves the pendent claim as well.’” (quoting\\n\\nMoore, 57 F.3d at 930)). Nor is appellate review of this question “necessary to\\n\\nensure meaningful review,” id. (quoting Sevenoaks, 545 F.3d at 915), of the issues\\n\\npresented in Director Dean’s qualified-immunity appeal, as evidenced by our\\n\\nanalysis of those issues, infra. See Cox, 800 F.3d at 1257 (“[W]e can\\n\\nundertake—indeed we have undertaken . . .—a meaningful analysis of Sheriff\\n\\nGlanz’s appeal from the denial of qualified immunity (i.e., the non-pendent claim)\\n\\nwithout exercising pendent jurisdiction over the official-capacity claim.”). As\\n\\nwas the case in Cox, in resolving the non-pendent appeal, “we [are] not required\\n\\nto decide the core issues implicated” in this ostensibly pendent matter, leaving us\\n\\nwith “grave doubt that there would be any appropriate basis for our exercise of\\n\\npendent jurisdiction.” Id.\\n\\n Our jurisdiction over Plaintiffs’ appeal from the dismissal of their\\n\\nprocedural due-process claim against Director Dean proves to be a closer call, but\\n\\nour conclusion is the same. It is axiomatic that procedural and substantive\\n\\ndue-process claims require distinct analyses, undermining the notion that this\\n\\npendent claim and the appealable claim are inextricably intertwined or that we\\n\\nmust review the procedural claim in order to adequately address the substantive\\n\\ndue-process claim that is properly before us. See Cleveland Bd. of Educ. v.\\n\\n\\n 16\\n\\fLoudermill, 470 U.S. 532, 541 (1985) (“The point is straightforward: the Due\\n\\nProcess Clause provides that certain substantive rights—life, liberty, and\\n\\nproperty—cannot be deprived except pursuant to constitutionally adequate\\n\\nprocedures. The categories of substance and procedure are distinct. Were the\\n\\nrule otherwise, the Clause would be reduced to a mere tautology.”); Brown, 662\\n\\nF.3d at 1172 (noting that a judicial decision in “a procedural due process case . . .\\n\\ncannot support a clearly established substantive due process right” (citation\\n\\nomitted)); Brown, 662 F.3d at 1172 n.16 (“Insofar as Mr. Brown claims a\\n\\nsubstantive due process violation based on Officer Montoya’s placing him in the\\n\\nsex offender probation unit and directing him to register as a sex offender without\\n\\na hearing, Mr. Brown confuses substantive due process with procedural due\\n\\nprocess.”); United States v. Deters, 143 F.3d 577, 582 (10th Cir. 1998) (“Unlike\\n\\nprocedural due process, substantive due process protects a small number of\\n\\n‘fundamental rights’ from government interference regardless of the procedures\\n\\nused.”); see also Browder v. City of Albuquerque, 787 F.3d 1076, 1078 (10th Cir.\\n\\n2015) (“The Supreme Court has interpreted this language [i.e., of the Due Process\\n\\nClause] as guaranteeing not only certain procedures when a deprivation of an\\n\\nenumerated right takes place (procedural due process), but also as guaranteeing\\n\\ncertain deprivations won’t take place without a sufficient justification\\n\\n(substantive due process).”); [Wesley] Brown v. Cooke, 362 F. App’x 897, 899\\n\\n(10th Cir. 2010) (unpublished) (“[T]he district court did not specifically state in\\n\\n\\n 17\\n\\fits opinion and order whether it considered a procedural due process claim, a\\n\\nsubstantive due process claim, or both. This omission is relevant because the\\n\\ncourt appeared to inject the more demanding ‘fundamental rights and liberties’\\n\\nanalysis from the substantive due process sphere into the ‘liberty interest’\\n\\nanalysis that pertains to the procedural due process inquiry.”).\\n\\n And though there is often some overlap between the two analyses when\\n\\nsubstantive and procedural due-process claims are raised together based on the\\n\\nsame facts, see Becker v. Kroll, 494 F.3d 904, 918 n.8 (10th Cir. 2007) (“Though\\n\\nit is sometimes helpful, as a matter of doctrine, to distinguish between substantive\\n\\nand procedural due process, the two concepts are not mutually exclusive, and\\n\\ntheir protections often overlap.” (quoting Albright v. Oliver, 510 U.S. 266, 301\\n\\n(1994) (Stevens, J. dissenting))), the issues here are quite distinct: Plaintiffs’\\n\\npendent action challenges the district court’s conclusion that there were adequate\\n\\nprocedural protections that Plaintiffs failed to invoke, whereas the non-pendent\\n\\nappeal challenges the court’s finding that the director’s actions shocked the\\n\\nconscience and violated clearly-established federal law. These considerations are\\n\\nnot inextricably intertwined, and review of the pendent action is not required for a\\n\\nmeaningful analysis of the non-pendent appeal. Indeed, the district court’s\\n\\nanalysis and even the parties’ briefing treat the two issues without overlap. See\\n\\nAplt.’s App. at 159–66; cf. Cox, 800 F.3d at 1257.\\n\\n\\n\\n\\n 18\\n\\f Thus, given our general disfavor of pendent jurisdiction in the qualified-\\n\\nimmunity context, see Bryson, 534 F.3d at 1285–86, Plaintiffs’ dereliction of their\\n\\nburden to establish our jurisdiction over their cross-appeal, and our conclusion\\n\\nthat neither of the two accepted rationales for exercising pendent jurisdiction are\\n\\npresent here, we decline to exercise pendent jurisdiction over Plaintiffs’ cross-\\n\\nappeal. We consequently dismiss Plaintiffs’ cross-appeal in Case No. 17-2079 for\\n\\nlack of jurisdiction.\\n\\n\\n\\n III\\n\\n We next turn to the issue properly before us on appeal: whether the district\\n\\ncourt erred in denying Director Dean qualified immunity against Plaintiffs’\\n\\nsubstantive due-process claim. We first lay out the familiar motion-to-dismiss\\n\\nand qualified-immunity standards of review before concluding that the district\\n\\ncourt erred in denying Director Dean’s qualified-immunity defense. More\\n\\nspecifically, we hold that the Plaintiffs have failed to carry their burden of\\n\\nshowing that Director Dean’s actions violated clearly-established federal law.\\n\\n A\\n\\n 1\\n\\n “A motion for judgment on the pleadings under Rule 12(c) is treated as a\\n\\nmotion to dismiss under Rule 12(b)(6).” Atl. Richfield Co. v. Farm Credit Bank\\n\\nof Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000); accord Jacobsen v. Deseret\\n\\n 19\\n\\fBook Co., 287 F.3d 936, 941 n.2 (10th Cir. 2002). Therefore, we review de novo\\n\\nthe district court’s denial of Director Dean’s motion asserting a qualified-\\n\\nimmunity defense. See, e.g., Brokers’ Choice of America Inc. v. NBC Universal,\\n\\nInc., 861 F.3d 1081, 1102 (10th Cir. 2017) (noting that “we use the same de novo\\n\\nstandard of review” in reviewing a district court’s ruling on Rule 12(c) and Rule\\n\\n12)(b)(6)); Brown, 662 F.3d at 1162 (“We review the district court’s denial of a\\n\\nmotion to dismiss based on qualified immunity de novo.” (quoting Peterson v.\\n\\nJensen, 371 F.3d 1199, 1202 (10th Cir. 2004))); Ramirez v. Dep’t of Corrs.,\\n\\nColo., 222 F.3d 1238, 1240 (10th Cir. 2000) (reviewing de novo a district court’s\\n\\ndenial of a Rule 12(c) motion based on qualified immunity), abrogated on other\\n\\ngrounds by Crawford-El v. Britton, 523 U.S. 574 (1988), as recognized by\\n\\nCurrier v. Doran, 242 F.3d 905, 912, 916 (10th Cir. 2001).\\n\\n “To survive a motion to dismiss, a complaint must contain sufficient factual\\n\\nmatter, accepted as true, to state a claim to relief that is plausible on its face.”\\n\\nEmps.’ Ret. Sys. of R.I. v. Williams Cos., Inc., 889 F.3d 1153, 1161 (10th Cir.\\n\\n2018) (quoting Iqbal, 556 U.S. at 678). “A claim has facial plausibility when the\\n\\nplaintiff pleads factual content that allows the court to draw the reasonable\\n\\ninference that the defendant is liable for the misconduct alleged.” Free Speech v.\\n\\nFed. Election Comm’n, 720 F.3d 788, 792 (10th Cir. 2013) (quoting Iqbal, 556\\n\\nU.S. at 678). In making this assessment, we “accept as true ‘all well-pleaded\\n\\nfactual allegations in a complaint and view these allegations in the light most\\n\\n\\n 20\\n\\ffavorable to the plaintiff.’” Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 (10th\\n\\nCir. 2013) (quoting Kerber v. Qwest Grp. Life Ins. Plan, 647 F.3d 950, 959 (10th\\n\\nCir. 2011)).\\n\\n 2\\n\\n The qualified-immunity doctrine protects public employees from both\\n\\nliability and “from the burdens of litigation” arising from their exercise of\\n\\ndiscretion. Allstate Sweeping, LLC v. Black, 706 F.3d 1261, 1266 (10th Cir.\\n\\n2013); see Elder v. Holloway, 510 U.S. 510, 514 (1994) (“The central purpose of\\n\\naffording public officials qualified immunity from suit is to protect them ‘from\\n\\nundue interference with their duties and from potentially disabling threats of\\n\\nliability.’” (quoting Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982))). When a\\n\\ndefendant raises the qualified-immunity defense, “the onus is on the plaintiff to\\n\\ndemonstrate ‘(1) that the official violated a statutory or constitutional right, and\\n\\n(2) that the right was “clearly established” at the time of the challenged\\n\\nconduct.’” Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015) (emphasis\\n\\nadded) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)); accord Cillo v.\\n\\nCity of Greenwood Village, 739 F.3d 451, 460 (10th Cir. 2013).\\n\\n We may address the two prongs of the qualified-immunity analysis in either\\n\\norder: “[I]f the plaintiff fails to establish either prong of the two-pronged\\n\\nqualified-immunity standard, the defendant prevails on the defense.” A.M. v.\\n\\nHolmes, 830 F.3d 1123, 1134–35 (10th Cir. 2016), cert. denied, 137 S. Ct. 2151\\n\\n\\n 21\\n\\f(2017). Here, our analysis focuses on the clearly-established-law prong, and we\\n\\nconclude that Plaintiffs have failed to demonstrate that Director Dean violated\\n\\ntheir clearly-established rights; consequently, Director Dean prevails on his\\n\\nqualified-immunity defense. Because we need not do so, we do not reach the first\\n\\nprong of the qualified-immunity standard—that is, whether Director Dean’s\\n\\nconduct in failing to set prevailing rates actually violated Plaintiffs’ substantive\\n\\ndue-process rights.\\n\\n “A clearly established right is one that is ‘sufficiently clear that every\\n\\nreasonable official would have understood that what he is doing violates that\\n\\nright.’” Mullenix v. Luna, --- U.S. ----, 136 S. Ct. 305, 308 (2015) (per curiam)\\n\\n(quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). Ordinarily, “[a]\\n\\nplaintiff may satisfy this [clearly-established-law] standard by identifying an\\n\\non-point Supreme Court or published Tenth Circuit decision [that establishes the\\n\\nunlawfulness of the defendant’s conduct]; alternatively, ‘the clearly established\\n\\nweight of authority from other courts must have found the law to be as the\\n\\nplaintiff maintains.’” Quinn, 780 F.3d at 1005 (quoting Weise v. Casper, 593\\n\\nF.3d 1163, 1167 (10th Cir. 2010)); accord A.M., 830 F.3d at 1135; Cox, 800 F.3d\\n\\nat 1247. As the Supreme Court has instructed, this “do[es] not require a case\\n\\ndirectly on point, but existing precedent must have placed the statutory or\\n\\nconstitutional question [regarding the illegality of the defendant’s conduct]\\n\\nbeyond debate.” al-Kidd, 563 U.S. at 741; see Estate of B.I.C. v. Gillen, 761 F.3d\\n\\n\\n 22\\n\\f1099, 1106 (10th Cir. 2014) (“Although it is not necessary for the facts in the\\n\\ncited authority to correspond exactly to the situation the plaintiff complains of,\\n\\nthe ‘plaintiff must demonstrate a substantial correspondence between the conduct\\n\\nin question and prior law allegedly establishing that the defendant’s actions were\\n\\nclearly prohibited.’” (quoting Trotter v. Regents of Univ. of N.M., 219 F.3d 1179,\\n\\n1184 (10th Cir. 2000))). In this vein, the Court has “repeatedly told [lower]\\n\\ncourts . . . not to define clearly established law at a high level of generality.” al-\\n\\nKidd, 563 U.S. at 742 (citation omitted); accord Mullenix, 136 S. Ct. at 308.\\n\\n“[D]oing so avoids the crucial question [of] whether the official acted reasonably\\n\\nin the particular circumstances that he or she faced.” Plumhoff v. Rickard, 572\\n\\nU.S. 765, 779 (2014) (emphasis added); accord Estate of B.I.C., 761 F.3d at 1106.\\n\\nIn this connection, it bears underscoring that the federal right allegedly violated\\n\\nmust have been “clearly established at the time of the defendant’s unlawful\\n\\nconduct.” Cillo, 739 F.3d at 460.\\n\\n In furthering the protective aims of qualified immunity, it is important that\\n\\ncourts be especially sensitive to the need to ensure “a substantial correspondence\\n\\nbetween the conduct in question and prior law allegedly establishing that the\\n\\ndefendant’s actions were clearly prohibited,” Estate of B.I.C., 761 F.3d at 1106\\n\\n(quoting Trotter, 219 F.3d at 1184)), where the legal standards of liability under\\n\\nthe prior law are broad and general or depend on a balancing of discrete and\\n\\nsometimes opposing interests. See Mullenix, 136 S. Ct. at 308 (holding that\\n\\n\\n 23\\n\\f“specificity [in defining clearly-established law] is especially important in the\\n\\nFourth Amendment context” because “[i]t is sometimes difficult for an officer to\\n\\ndetermine how the relevant legal doctrine . . . will apply to the factual situation\\n\\nthe officer confronts” (second alteration in original) (quoting Saucier v. Katz, 533\\n\\nU.S. 194, 205 (2001), overruled in part on other grounds by Pearson v. Callahan,\\n\\n555 U.S. 223, 236 (2009), as recognized by Hobbs ex rel. Hobbs v. Zenderman,\\n\\n579 F.3d 1171, 1183 (10th Cir. 2009))); Aldaba v. Pickens, 844 F.3d 870, 877\\n\\n(10th Cir. 2016) (“In the Fourth Amendment context, ‘the result depends very\\n\\nmuch on the facts of each case,’ and the precedents must ‘squarely govern’ the\\n\\npresent case [to constitute clearly-established law].” (quoting Mullenix, 136 S. Ct.\\n\\nat 309)); Medina v. City & County of Denver, 960 F.2d 1493, 1498 (10th Cir.\\n\\n1992) (addressing a substantive due-process claim and stating that “allegations of\\n\\nconstitutional violations that require courts to balance competing interests may\\n\\nmake it more difficult to find the law ‘clearly established’ when assessing claims\\n\\nof qualified immunity”), overruled in part on other grounds by County of\\n\\nSacramento v. Lewis, 523 U.S. 833 (1998), as recognized by Morris v. Noe, 672\\n\\nF.3d 1185, 1197 n.5 (10th Cir. 2012); Melton v. City of Oklahoma City, 879 F.2d\\n\\n706, 729 (10th Cir. 1989) (addressing a retaliatory-discharge claim under the First\\n\\nAmendment, and noting that, “because a rule of law determined by a balancing of\\n\\ninterests is inevitably difficult to clearly anticipate, it follows that where . . .\\n\\nbalancing is required, the law is less likely to be well established than in other\\n\\n\\n 24\\n\\fcases”), modified on other grounds on reh’g, 928 F.2d 920 (10th Cir. 1991) (en\\n\\nbanc). The legal standard governing liability under the rubric of substantive due\\n\\nprocess evinces these attributes.\\n\\n Specifically, the standard for liability for a violation of a person’s\\n\\nsubstantive due-process rights is broad and general. See Washington v.\\n\\nGlucksberg, 521 U.S. 702, 722 (1997) (stating that the rights protected under\\n\\nsubstantive due process have “never [been] fully clarified, to be sure, and perhaps\\n\\n[are] not capable of being fully clarified”); Collins v. City of Harker Heights, 503\\n\\nU.S. 115, 125 (1992) (describing substantive due process as an “unchartered area”\\n\\nin which the “guideposts for responsible decisionmaking . . . are scarce and\\n\\nopen-ended”). Furthermore and relatedly, consideration of whether a person’s\\n\\nsubstantive due-process rights have been infringed “requires a ‘balancing [of the\\n\\nperson’s constitutionally protected] interests against the relevant state interests.’”\\n\\nJ.B. v. Washington Cty., 127 F.3d 919, 927 (10th Cir. 1997) (quoting Youngberg\\n\\nv. Romeo, 457 U.S. 307, 321 (1982)).\\n\\n Thus, in our assessment here of whether Director Dean’s conduct violated\\n\\nPlaintiffs’ clearly-established substantive due-process rights, we must be\\n\\nespecially sensitive to whether existing relevant precedents at the time he acted\\n\\n“squarely govern[ed],” Mullenix, 136 S. Ct. at 310, “the particular circumstances\\n\\nthat he . . . faced,” Plumhoff, 572 U.S. at 779 (emphasis added), and demonstrated\\n\\n\\n\\n\\n 25\\n\\fthat the “violative nature of the particular conduct is clearly established.”\\n\\nAldaba, 844 F.3d at 877 (quoting Mullenix, 136 S. Ct. at 308).\\n\\n\\n\\n B\\n\\n Director Dean challenges the district court’s conclusion as to both prongs\\n\\nof the qualified-immunity analysis, i.e., that he violated Plaintiffs’ substantive\\n\\ndue-process rights and that he did so in violation of clearly-established federal\\n\\nlaw. We agree with Director Dean that he did not violate clearly-established\\n\\nfederal law and thus conclude that he is entitled to the defense of qualified\\n\\nimmunity. However, we first address Plaintiffs’ argument that the\\n\\nqualified-immunity defense is unavailable because Director Dean’s obligation to\\n\\nset CBA-based rates was a ministerial duty, rather than a discretionary function of\\n\\nhis position.\\n\\n 1\\n\\n Qualified immunity only shields an official in the exercise of his or her\\n\\ndiscretion. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009)\\n\\n(“Under the qualified immunity doctrine, ‘government officials performing\\n\\ndiscretionary functions, generally are shielded from liability for civil damages\\n\\ninsofar as their conduct does not violate clearly established [federal] statutory or\\n\\nconstitutional rights of which a reasonable person would have known.’”\\n\\n(alteration in original) (emphasis added) (quoting Harlow, 457 U.S. at 818)).\\n\\n\\n 26\\n\\fPlaintiffs contend that Director Dean’s duty to issue new prevailing rates for\\n\\nwages and fringe benefits pursuant to the Act was nondiscretionary, rendering\\n\\nqualified immunity inapplicable here. For support, they rely primarily on the\\n\\nNew Mexico Supreme Court’s statement in Dean that “under the Act, specifically\\n\\nSection 13-4-11, the Director has a mandatory, nondiscretionary duty to set\\n\\nprevailing wage and prevailing benefit rates the same as those negotiated in\\n\\napplicable CBAs.” 353 P.3d at 1218. Director Dean responds that his duty was\\n\\nin fact discretionary because it involved interpreting the Act.\\n\\n We agree with Director Dean that his duty to publish prevailing rates\\n\\ninvolved substantial discretion as that term applies in the federal qualified-\\n\\nimmunity context, and that he therefore may avail himself of the qualified-\\n\\nimmunity defense. Director Dean’s implementation of the Act required him to\\n\\ninterpret the language of a state statute. And although the New Mexico Supreme\\n\\nCourt eventually held that Defendants’ interpretation was contrary to the 2009\\n\\nAmendments, see Dean, 353 P.3d at 1218, interpretation of state law is exactly\\n\\nthe kind of discretionary function for which the qualified-immunity defense\\n\\nagainst federal liability applies.\\n\\n The Supreme Court made this clear in Davis v. Scherer, 468 U.S. 183\\n\\n(1984), where it reversed the district court’s denial of qualified immunity based\\n\\nupon a finding that the defendants had violated a clear mandate of state law in\\n\\nterminating plaintiff’s employment without following certain pretermination\\n\\n\\n 27\\n\\fprocedures. Id. at 193. The Court proceeded to craft a narrow scope for the\\n\\n“ministerial duty” exception to qualified immunity. Id. at 196 n.14. The Court\\n\\nexplained that a law that “fails to specify the precise action that the official must\\n\\ntake in each instance creates only discretionary authority; and that authority\\n\\nremains discretionary however egregiously it is abused.” Id. Thus, the Davis\\n\\nCourt reasoned, even assuming that the defendants had “ignored a clear legal\\n\\ncommand” to follow various pre-termination procedures before ending the\\n\\nplaintiff’s employment, this duty was discretionary given that the state regulation\\n\\nin question left to them to interpret various terms contained in those\\n\\npretermination procedures, including “a complete investigation” and a “thorough\\n\\nstudy of all information.” Id. These indefinite terms provided the defendants\\n\\nwith a “substantial measure of discretion” and thus allowed them to exercise\\n\\nauthority that is discretionary, rather than ministerial. Id.\\n\\n Similarly, the Act left to Director Dean a substantial measure of discretion\\n\\nin interpreting its terms. The Act requires the director to establish prevailing\\n\\nrates “at the same wage rates and fringe benefit rates used in collective bargaining\\n\\nagreements,” but leaves to the director substantial discretion to determine the\\n\\nmethod of collecting and aggregating data, and, perhaps most importantly for our\\n\\npresent inquiry, the timetable for doing so. N.M. S TAT . § 13-4-11(B) (West\\n\\n2009).\\n\\n\\n\\n\\n 28\\n\\f Notably, Plaintiffs fail to cite any caselaw addressing federal qualified\\n\\nimmunity that would support a contrary result. And though the New Mexico\\n\\nSupreme Court held that “the Director has a mandatory, nondiscretionary duty to\\n\\nset the same prevailing wage and prevailing benefit rates as those negotiated in\\n\\napplicable CBAs,” Dean, 353 P.3d at 1214, the analytical context of the state\\n\\ncourt’s description of Director Dean’s duty as “mandatory” and\\n\\n“nondiscretionary” is important. The court’s description relates to the availability\\n\\nof mandamus relief under New Mexico law. Id. at 1214. While we ordinarily\\n\\ndefer to a state court’s interpretation of a state statute, see United States v.\\n\\nDeGasso, 369 F.3d 1139, 1145 (10th Cir. 2004) (“It is axiomatic that state courts\\n\\nare the final arbiters of state law.”), the issue before us concerns not whether\\n\\nmandamus is available under New Mexico law, but whether qualified immunity\\n\\nbars liability under federal law. We therefore apply a federal standard to\\n\\ndetermine whether Director Dean’s obligations were sufficiently discretionary to\\n\\nwarrant the protections of the qualified-immunity defense under federal law, and\\n\\nwe conclude that the United States Supreme Court’s language in Davis compels\\n\\nour conclusion that such protections are available here.\\n\\n Director Dean’s interpretation and implementation of the Act were\\n\\ntherefore matters within his discretion, and he is protected from liability under\\n\\n§ 1983 unless his conduct violated clearly-established federal law.\\n\\n 2\\n\\n\\n 29\\n\\f Turning finally to the issue of whether Director Dean is entitled to qualified\\n\\nimmunity under the circumstances giving rise to this § 1983 suit, we conclude\\n\\nthat his actions did not violate clearly-established federal law. Specifically, we\\n\\nconclude that Plaintiffs have failed to meet the second prong of the qualified-\\n\\nimmunity analysis—i.e., Plaintiffs have failed to identify clearly-established law\\n\\nthat would have put Director Dean on notice that his conduct would give rise to\\n\\nliability under federal law—and thus we need not reach the first prong of the\\n\\nqualified-immunity analysis, i.e., whether Director Dean’s conduct in fact\\n\\nviolated Plaintiffs’ rights to substantive due process. See A.M., 830 F.3d\\n\\nat 1134–35.\\n\\n The district court denied qualified immunity based upon a finding that “the\\n\\nAct clearly and unambiguously required the Director to set prevailing wage rates\\n\\naccording to CBAs.” Aplt.’s App. at 165. Plaintiffs rely on this reasoning and\\n\\nurge us to affirm.\\n\\n But the district court’s reasoning is flawed because it equates a violation of\\n\\na clear obligation under state law 4 with a violation of clearly-established federal\\n\\n 4\\n Director Dean argues, in his opening brief, that he followed a\\n“normal process” by refraining from implementing the Act during the pendency of\\nthe challenge before the LIC. Def.’s Opening Br. at 27. In a single sentence, he\\nargues that “state law was ambiguous at the time,” given that an appeal to the LIC\\ntypically activates an automatic stay, N.M. C ODE R. § 11.1.2.17(B)(1), and the\\nLIC never acted to lift the stay despite the NMBCTC’s request to waive the stay.\\nSee Def.’s Opening Br. at 27–28.\\n\\n (continued...)\\n\\n 30\\n\\flaw. Whether Director Dean violated clearly-established state law in failing to set\\n\\nCBA-based rates, however, is an entirely separate question from whether that\\n\\nfailure violated clearly-established federal law. And even if Director Dean had\\n\\nnotice that his reading of the Act was incorrect as a matter of state law, this\\n\\nwould not necessarily deprive him of qualified immunity from liability under\\n\\nfederal law. See Davis, 468 U.S. at 194 (“Officials sued for constitutional\\n\\nviolations do not lose their qualified immunity merely because their conduct\\n\\nviolates some statutory or administrative provision [of state law].”); Stanley v.\\n\\nGallegos, 852 F.3d 1210, 1224 (10th Cir. 2017) (Holmes, J., concurring in the\\n\\njudgment) (noting that Davis forecloses the argument that “if an official acts\\n\\noutside of his scope of authority, as defined by clearly established state law, he\\n\\n‘forfeits’ his right to have a federal court in a § 1983 action consider the merits of\\n\\nhis defense that his actions did not violate clearly established federal law”); cf.\\n\\n\\n\\n 4\\n (...continued)\\n However, during oral arguments before this court, Director Dean’s counsel\\nconceded that there was no confusion regarding the director’s state-law\\nobligations—irrespective of whether a stay was in effect—once the secretary’s\\ncounsel represented to the New Mexico Supreme Court that DWS would update\\nthe prevailing rates. Thus, we deem any argument that the director’s obligation\\nunder state law was ambiguous as either waived due to inadequate briefing on\\nappeal or abandoned by counsel’s affirmative admission during oral argument, see\\nUnited States v. Cooper, 654 F.3d 1104, 1128 (10th Cir. 2011); United States v.\\nCarrasco-Salazar, 494 F.3d 1270, 1272–73 (10th Cir. 2007), at least insofar as\\nthe argument bears upon the clearly-established-law prong of the qualified-\\nimmunity analysis—viz., insofar as any ambiguity might have supported the idea\\nthat a reasonable state official in Director Dean’s position would not have been on\\nfair notice of a violation of federal law.\\n\\n 31\\n\\fDahn v. Amedei, 867 F.3d 1178, 1189 (10th Cir. 2017) (reversing denial of\\n\\nqualified immunity upon finding no violation of clearly-established federal law,\\n\\nbut noting that Defendants’ conduct could “very well expose them to tort\\n\\nliability” under state law).\\n\\n Neither the district court nor Plaintiffs have identified any case from the\\n\\nSupreme Court or this court finding a defendant liable under federal law in\\n\\nfactually similar circumstances, i.e., where a public official in the same or similar\\n\\nposition as Director Dean was held liable under federal law for failing to set rates\\n\\nfor wages and fringe benefits (or for similar items) in apparent contravention of\\n\\nstate law that required him to do so. Given that Plaintiffs bear the burden of\\n\\npresenting such a case to overcome qualified immunity, see Gutierrez v. Cobos,\\n\\n841 F.3d 895, 900 (10th Cir. 2016), this failure proves fatal to their position.\\n\\n Instead, Plaintiffs cite two factually inapposite cases in arguing that the Act\\n\\ncreated a clearly-established right for purposes of qualified immunity by virtue of\\n\\nits “clear and unambiguous” description of Director Dean’s duties. These cases,\\n\\nhowever, do not speak to the legal issue present here and are without controlling\\n\\nforce in this circuit.\\n\\n The first is Gardner v. Williams, 56 F. App’x 700 (6th Cir. 2003)\\n\\n(unpublished). Plaintiffs’ reliance on Gardner is patently misguided. To begin, it\\n\\nis notable that Gardner is an out-of-circuit unpublished decision; even assuming\\n\\nthat such a decision is entitled to any consideration at all in the clearly-\\n\\n\\n 32\\n\\festablished-law analysis, that consideration would be minimal. See Morris, 672\\n\\nF.3d at 1197 n.5 (observing that “a single unpublished district court opinion is not\\n\\nsufficient to render the law clearly established,” but, in discussing “unpublished\\n\\ncases from this court,” noting that “we have never held that a district court must\\n\\nignore unpublished opinions in deciding whether the law is clearly established”);\\n\\nMecham v. Frazier, 500 F.3d 1200, 1206 (10th Cir. 2007) (noting, in the context\\n\\nof discussing the import of an unpublished Tenth Circuit decision, that “[a]n\\n\\nunpublished opinion, . . . even if the facts were closer, provides little support for\\n\\nthe notion that the law is clearly established”); cf. Grissom v. Roberts, 902 F.3d\\n\\n1162, 1168 (10th Cir. 2018) (acknowledging the “little support” holding of\\n\\nMecham but noting that, on the other hand, “an unpublished opinion can be quite\\n\\nrelevant in showing that the law was not clearly established,” specifically when\\n\\n“the same alleged victim and same defendant conduct are involved”).\\n\\n Furthermore, even focusing on the merits, Gardner lends Plaintiffs little\\n\\nsuccor. There, a panel of the Sixth Circuit concluded that a state trooper had\\n\\nviolated an individual’s clearly-established Fourth Amendment rights by arresting\\n\\nhim without probable cause given that it was “unambiguous and not reasonably\\n\\nopen to an alternative interpretation” that the state statutes used to justify the\\n\\narrest were inapplicable. 56 F. App’x at 704. First of all, Gardner is patently\\n\\ndistinguishable because there it was undisputed that effecting an arrest without\\n\\nprobable cause would constitute a violation of Fourth Amendment Rights. In\\n\\n\\n 33\\n\\fcontrast, here it is disputed that Director Dean’s failure to determine prevailing\\n\\nrates constituted any violation of federal rights. More fundamentally, Gardner\\n\\nsimply highlights in unremarkable fashion the “inevitable importance” in certain\\n\\nlegal settings of state law to our assessment of whether the plaintiff may “show a\\n\\nviolation of his federal rights.” Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th\\n\\nCir. 2012). “The basic federal constitutional right of freedom from arrest without\\n\\nprobable cause is undoubtedly clearly established by federal cases. But the\\n\\nprecise scope of that right uniquely depends on the contours of a state’s\\n\\nsubstantive criminal law” where, as in Gardner, the issue is whether the law\\n\\nenforcement officer “had probable cause based on a state criminal statute.” Id.\\n\\nat 1300–01 (citation omitted) (citing Keylon v. City of Albuquerque, 535 F.3d\\n\\n1210, 1216 (10th Cir. 2008)). “[H]owever, we underscore that—even when it is\\n\\nessential to discern the content of state law—the rights being vindicated through\\n\\n§ 1983 are federal.” A.M., 830 F.3d at 1141. Gardner does not purport to alter\\n\\nthis federal-law focus of § 1983 liability. Nor does Gardner suggest that state-\\n\\nlaw violations play a similarly significant role in the context of substantive due-\\n\\nprocess violations, much less clearly establish that Director Dean’s alleged\\n\\nviolation of clearly-established state law in failing to set CBA-based rates would\\n\\neffect a violation of substantive due process. Thus, Plaintiffs’ reliance on\\n\\nGardner is unavailing.\\n\\n\\n\\n\\n 34\\n\\f The second case Plaintiffs cite is Brooks v. George County, 84 F.3d 157\\n\\n(5th Cir. 1996). Brooks, however, is inapposite. There, the Fifth Circuit denied\\n\\nqualified immunity to a sheriff that had failed to meet his obligation under state\\n\\nlaw to keep records that were to be used to pay pretrial detainees. Id. at 164–65.\\n\\nBut the Fifth Circuit’s decision to deny qualified immunity there rested entirely\\n\\non its determination, based on a reading of the state statute in question, that the\\n\\nsheriff’s duty was non-discretionary. Id. However, as stated supra, we have\\n\\ndetermined that Director Dean’s duties under the 2009 Amendments were in fact\\n\\ndiscretionary for purposes of qualified immunity under federal law. Therefore,\\n\\nBrooks does not help Plaintiffs either.\\n\\n Because Plaintiffs have offered no authority clearly establishing that\\n\\nDirector Dean violated their substantive due-process rights under federal law by\\n\\nfailing to discharge his state-law obligation under the Act to publish CBA-based\\n\\nrates for wages and fringe benefits, we conclude that Director Dean is entitled to\\n\\nqualified immunity. 5\\n\\n IV\\n\\n\\n\\n 5\\n Since our inquiry here solely concerned whether Director Dean\\nviolated clearly-established federal law for purposes of determining whether he is\\nentitled to qualified immunity from liability under federal law, see Davis, 468\\nU.S. at 194, we have no occasion to question the New Mexico Supreme Court’s\\nreading of the 2009 Amendments, or to decide whether Director Dean’s conduct\\nin fact violated state law. Our opinion thus does not preclude Plaintiffs from\\nseeking any available relief for Defendants’ purported violations of New Mexico\\nlaw in state court.\\n\\n 35\\n\\f For the reasons discussed above, we DISMISS Plaintiffs’ appeal of the\\n\\ngrant of qualified immunity in Case No. 17-2079 for lack of jurisdiction, and we\\n\\nREVERSE the district court’s judgment in Case No. 17-2072 and REMAND the\\n\\ncase and instruct the court to grant Director Dean qualified immunity with respect\\n\\nto Plaintiffs’ substantive due-process claim.\\n\\n\\n\\n\\n 36\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4361613/\", \"author_raw\": \"HOLMES, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"LUCERO"},"judge2":{"kind":"string","value":"HOLMES"},"judge3":{"kind":"string","value":"EID"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4584360/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Randy CUMMINGS ; Cruz Gallegos ; Robert J. Garcia ; Richard Gonzales; Eloy A. Jaramillo; David Larranaga; Joseph Lopez; Rick Lopez ; David Montano; Angelo Rinaldi ; Chris Sweeney ; Josh Tillinghast; Tomas Trujillo; Jeffrey S. Wade; Joshua Hoselton; Charles W. Lees; Jaime Marquez ; Robert Mendoza; Armando Anchondo; Gustavo Berrospe; Reyes Cabriales; Sergio Escobedo ; Jason Head; Nick Hinojos; Robert G. Hitzman; Michael Lopez; Jose Rodriguez; Sergio A. Rojo; Richard Tenorio; Cesar Torres ; Grant Willis; Harold Brown; Rene Carrillo; Henry Nez, Jr.; Kurt Johnson; Jesus Aguilar-Murillo; Martin F. Alvarez; Arthur Archuleta; Enrique Corona; Ronald Hubbard ; Andrew M. Lugo; Henry Lujan ; David Carr; D. Jeremiah Cordova; Kevin Charvea; Nathan Espalin; Levi Gutierrez; Dennis Moore; Robert Moreno ; Levi Olivas; Thomas D. Payne; Bryan Wheeler, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellees/Cross-Appellants, v. Jason DEAN, as the Director of the Labor Relations Division of the New Mexico Department of Workforce Solutions, in His Individual Capacity, Defendant-Appellant/Cross-Appellee and Celina Bussey, Secretary of the New Mexico Department of Workforce Solutions, in Her Individual Capacity, Defendant/Cross-Appellee.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-24\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n Tenth Circuit\n\n January 24, 2019\n PUBLISH\n Elisabeth A. Shumaker\n UNITED STATES COURT OF APPEALS Clerk of Court\n\n TENTH CIRCUIT\n\n\n\nRANDY CUMMINGS; CRUZ\nGALLEGOS; ROBERT J. GARCIA;\nRICHARD GONZALES; ELOY A.\nJARAMILLO; DAVID\nLARRANAGA; JOSEPH LOPEZ;\nRICK LOPEZ; DAVID MONTANO;\nANGELO RINALDI; CHRIS\nSWEENEY; JOSH TILLINGHAST;\nTOMAS TRUJILLO; JEFFREY S.\nWADE; JOSHUA HOSELTON;\nCHARLES W. LEES; JAIME\nMARQUEZ; ROBERT MENDOZA;\nARMANDO ANCHONDO;\nGUSTAVO BERROSPE; REYES\nCABRIALES; SERGIO ESCOBEDO;\nJASON HEAD; NICK HINOJOS;\nROBERT G. HITZMAN; MICHAEL\nLOPEZ; JOSE RODRIGUEZ;\nSERGIO A. ROJO; RICHARD\nTENORIO; CESAR TORRES;\nGRANT WILLIS; HAROLD BROWN;\nRENE CARRILLO; HENRY NEZ,\nJR.; KURT JOHNSON; JESUS\nAGUILAR-MURILLO; MARTIN F.\nALVAREZ; ARTHUR ARCHULETA;\nENRIQUE CORONA; RONALD\nHUBBARD; ANDREW M. LUGO;\nHENRY LUJAN; DAVID CARR; D.\nJEREMIAH CORDOVA; KEVIN\nCHARVEA; NATHAN ESPALIN;\nLEVI GUTIERREZ; DENNIS\nMOORE; ROBERT MORENO; LEVI\nOLIVAS; THOMAS D. PAYNE;\nBRYAN WHEELER, on behalf of\nthemselves and all others similarly\n\f situated,\n\n Plaintiffs - Appellees/Cross-\n Appellants,\n v. Nos. 17-2072 & 17-2079\n JASON DEAN, as the Director of the\n Labor Relations Division of the New\n Mexico Department of Workforce\n Solutions, in his individual capacity,\n\n Defendant - Appellant/Cross-\n Appellee\n\n and\n\n CELINA BUSSEY, Secretary of the\n New Mexico Department of Workforce\n Solutions, in her individual capacity,\n\n Defendant/Cross-Appellee.\n\n\n Appeal from the United States District Court\n for the District of New Mexico\n (D.C. No. 1:16-CV-00951-JAP-KK)\n\n\nThomas Bird, Keleher & McLeod, P.A., Albuquerque, New Mexico (Jason J.\nLewis, Law Office of Jason J. Lewis, LLC, Albuquerque, New Mexico; Marshall\nJ. Ray, Law Offices of Marshall J. Ray, LLC, Albuquerque, New Mexico; and\nSean Olivas, Keleher & McLeod, P.A., Albuquerque, New Mexico, on the briefs),\nfor Defendant - Appellant/Cross-Appellee and Defendant/Cross-Appellee.\n\nShane Youtz (James A. Montalbano and Stephen Curtice, with him on the briefs),\nYoutz & Valdez, P.C., Albuquerque, New Mexico, for Plaintiffs - Appellees\n/Cross-Appellants.\n\n\nBefore LUCERO, HOLMES, and EID, Circuit Judges.\n\n 2\n\fHOLMES, Circuit Judge.\n\n\n Jason Dean, director of the Labor Relations Division of the New Mexico\n\nDepartment of Workforce Solutions (“DWS”), raises this appeal from the district\n\ncourt’s denial of qualified immunity against the claim that he violated Plaintiffs’\n\nconstitutional rights to substantive due process by failing to issue prevailing rates\n\nfor wages and fringe benefits as required by New Mexico law.\n\n In the action below, Plaintiffs, individuals who worked on public works\n\nprojects in New Mexico, filed claims under 42 U.S.C. § 1983 on behalf of\n\nthemselves and others similarly situated, alleging that Director Dean and Celina\n\nBussey, secretary of the DWS, violated Plaintiffs’ procedural and substantive\n\ndue-process rights by failing to determine prevailing rates for wages and fringe\n\nbenefits in contravention of the New Mexico Public Works Minimum Wage Act\n\n(“Act”), N.M. S TAT . A NN . § 13-4-11(B) (West 2009). Plaintiffs alleged that, as a\n\nresult of this failure, from 2009 to 2015 they did not receive the rates to which\n\nthey were entitled under the Act.\n\n Defendants filed a motion to dismiss, claiming qualified immunity. The\n\ndistrict court granted it in part and denied it in part. Specifically, the district\n\ncourt granted the motion in its entirety as to Secretary Bussey, and as to\n\nPlaintiffs’ procedural due-process claim against Director Dean. However, the\n\n\n 3\n\fcourt denied the motion with respect to Director Dean on Plaintiffs’ substantive\n\ndue-process claim.\n\n Both parties now appeal from the district court’s ruling. In Case No. 17-\n\n2072, Director Dean appeals from the court’s denial of qualified immunity as to\n\nPlaintiffs’ substantive due-process claim, while in Case No. 17-2079, Plaintiffs\n\ncross-appeal the district court’s dismissal of (1) their claims against Secretary\n\nBussey, and (2) their claim against Director Dean for violation of their procedural\n\ndue-process rights.\n\n For the reasons stated below, we dismiss Plaintiffs’ cross-appeal, Case No.\n\n17-2079, for lack of jurisdiction, and reverse and remand the district court’s\n\ndenial of qualified immunity as to Director Dean on Plaintiffs’ substantive\n\ndue-process claim in Case No. 17-2072.\n\n I\n\n We first present the state statutory context for Plaintiffs’ claims and then\n\nreview the relevant facts.\n\n A\n\n Every contract for public works in New Mexico in excess of\n\n$60,000—including those involving construction and demolition—is required to\n\nstate the minimum wages and fringe benefits for all tradespeople that work on a\n\nparticular project. The director of the Labor Relations Division of DWS (“the\n\ndirector”) is tasked with publishing a schedule of minimum wages and fringe\n\n 4\n\fbenefits for such laborers and mechanics. Generally, Plaintiffs are individuals\n\nwho worked on public-works projects in New Mexico during the three years prior\n\nto the date of the filing of their lawsuit on August 23, 2016.\n\n Prior to 2009, § 13-4-11(B) of the Act provided:\n\n [The director] shall conduct a continuing program for the\n obtaining and compiling of wage-rate information and shall\n encourage the voluntary submission of wage-rate data by\n contractors, contractors’ associations, labor organizations,\n interested persons and public officers. Before making a\n determination of wage rates for any project, the director shall\n give due regard to the information thus obtained. Whenever the\n director deems that the data at hand are insufficient to make a\n wage determination, the director may have a field survey\n conducted for the purpose of obtaining sufficient information\n upon which to make [a] determination of wage rates. Any\n interested person shall have the right to submit to the director\n written data, views and arguments why the wage determination\n should be changed.\n\nN.M. S TAT . A NN . § 13-4-11(B) (West 2005). In 2009, § 13-4-11(B) of the Act\n\nwas amended to state:\n\n The director shall determine prevailing wage rates and prevailing\n fringe benefit rates for respective classes of laborers and\n mechanics employed on public works projects at the same wage\n rates and fringe benefit rates used in collective bargaining\n agreements between labor organizations and their signatory\n employers that govern predominantly similar classes or\n classifications of laborers and mechanics for the locality of the\n public works project and the crafts involved; provided that:\n\n (1) if the prevailing wage rates and prevailing fringe benefit\n rates cannot reasonably and fairly be determined in a\n locality because no collective bargaining agreements exist,\n the director shall determine the prevailing wage rates and\n prevailing fringe benefit rates for the same or most similar\n\n 5\n\f class or classification of laborer or mechanic in the nearest\n and most similar neighboring locality in which collective\n bargaining agreements exist;\n\n (2) the director shall give due regard to information obtained\n during the director’s determination of the prevailing wage\n rates and the prevailing fringe benefit rates made pursuant\n to this subsection;\n\n (3) any interested person shall have the right to submit to the\n director written data, personal opinions and arguments\n supporting changes to the prevailing wage rate and\n prevailing fringe benefit rate determination; and\n\n (4) prevailing wage rates and prevailing fringe benefit rates\n determined pursuant to the provisions of this section shall\n be compiled as official records and kept on file in the\n director’s office and the records shall be updated in\n accordance with the applicable rates used in subsequent\n collective bargaining agreements.\n\nN.M. S TAT . A NN . § 13-4-11(B) (West 2009) [hereinafter “the 2009\n\nAmendments”].\n\n The 2009 Amendments had the primary effect of requiring the director to\n\ndetermine the prevailing rates based on the wage rates and fringe-benefit rates\n\nused in collective bargaining agreements (“CBAs”), as opposed to the earlier\n\nversion of the statute’s mandate to simply collect data for the “purpose of\n\nobtaining sufficient information upon which to make [a] determination of wage\n\nrates.” N.M. S TAT . A NN . § 13-4-11(B) (West 2005); see also Aplt.’s App.\n\nat 151–52 (Mem. Op. & Order, dated Apr. 20, 2017).\n\n B\n\n\n 6\n\f By April 2011—almost two years after the 2009 Amendments came into\n\nforce—the director still had not set prevailing-wage rates according to the CBAs.\n\nThe New Mexico Building and Construction Trades Council (“NMBCTC”), “an\n\nalliance of craft unions” that represent New Mexico public workers, N.M. Bldg. &\n\nConstr. Trades Council v. Dean, 353 P.3d 1212, 1214 (N.M. 2015), filed a\n\nPetition for Writ of Mandamus in the New Mexico Supreme Court requesting that\n\nthe court compel the director to set prevailing wage and prevailing benefit rates in\n\naccordance with relevant CBAs. The New Mexico Supreme Court denied the\n\nwrit, but did so on the basis of a representation by the DWS secretary’s (“the\n\nsecretary”) counsel that the secretary would set new rates within four or five\n\nmonths. See id. (quoting counsel’s statement during oral arguments in 2011: “I\n\nwould say [setting the rates] could conceivably be done in four or five months,\n\nwhich I don’t think is unreasonable, especially since the secretary has assured me,\n\nand I’m assuring the Court, that she’s intent on getting this done. I don’t think it\n\nrequires a writ of mandamus to get it done. But, whatever the Court desires, I’m\n\nconfident she’ll get it done.”).\n\n Despite this assurance from the secretary’s counsel, the secretary did not\n\nset new prevailing wage or prevailing benefit rates, even though in 2012 she\n\noversaw the promulgation of new regulations and the amendment of others as\n\nrequired by the Act. Id. at 1214–15. The NMBCTC challenged these new\n\nregulations before the New Mexico Labor and Industrial Commission (“LIC”).\n\n 7\n\fTypically, a challenge to a new regulation filed with the LIC stays the\n\nimplementation of that regulation pending resolution of the challenge, see N.M.\n\nC ODE R. § 11.1.2.17(B)(1), but the NMBCTC requested that the LIC waive the\n\nautomatic stay if necessary to allow the DWS to proceed with determining new\n\nprevailing rates:\n\n Pursuant to [N.M. C ODE R. § 11.1.2.17(B)(1)], Appellant waives\n its right to stay the effectiveness of the new rules through the\n filing of this appeal as those rules relate to the determination of\n new prevailing rates to replace the rates currently in effect. . . .\n Appellant desires the Department to update the prevailing rates\n in some manner as soon as possible given that the current rates\n are based on 2009 data and have not been updated for more than\n two years. If necessary, Appellant requests the Commission to\n waive the automatic stay as herein described as well.\n\nAplt.’s App. at 106 (Ex. E, Notice of Appeal, dated Mar. 27, 2012). The LIC\n\ndenied the NMBCTC’s challenge, and the NMBCTC appealed that decision to the\n\nstate district court. The LIC did not act to lift the automatic stay at any point\n\nduring these proceedings.\n\n While the appeal to the state district court was pending, and in light of the\n\ndirector’s continued failure to determine updated rates, the NMBCTC filed a\n\nsecond Petition for Writ of Mandamus in the New Mexico Supreme Court in\n\n2015. The NMBCTC again requested that the New Mexico Supreme Court order\n\nthe director to determine the rates as required under the Act. The court this time\n\ngranted the writ, stating:\n\n\n\n\n 8\n\f We hold that under the Act the Director has a mandatory,\n nondiscretionary duty to set the same prevailing wage and\n prevailing benefit rates as those negotiated in applicable CBAs\n and that the Director’s failure to do so violates the Act. We\n therefore issue a writ of mandamus ordering the Director to\n comply with the Act and set rates in accordance with CBAs as\n required under the Act within thirty days of the issuance of this\n opinion.\n\nDean, 353 P.3d at 1214.\n\n C\n\n Plaintiffs filed the present suit in federal court alleging that they suffered\n\nfinancial harm due to Defendants’ failure to determine the prevailing rates in\n\naccordance with the 2009 Amendments. Specifically, they allege that the wages\n\nand benefits they received, which were based on the pre-2009 Amendment\n\ndeterminations, “were less than would have been received had Defendants issued\n\nprevailing wage rate and prevailing fringe benefit determinations in accordance\n\nwith the . . . Act as amended in 2009.” Aplt.’s App. at 44 (First Am. Compl.,\n\ndated Aug. 23, 2016).\n\n Pursuant to Federal Rule of Civil Procedure 12(c) (“Rule 12(c)”),\n\nDefendants sought judgment on the pleadings with respect to Plaintiff’s amended\n\ncomplaint—the operative complaint for our purposes—on qualified-immunity\n\ngrounds. The district court granted the motion in its entirety with respect to\n\nSecretary Bussey since Plaintiffs had failed to allege the necessary “‘affirmative\n\nlink’ demonstrating that Bussey authorized or approved of Dean’s noncompliance\n\n\n 9\n\fwith the Act.” Aplt.’s App. at 159 (quoting Dodds v. Richardson, 614 F.3d 1185,\n\n1200–01 (10th Cir. 2010)).\n\n The court then considered Plaintiffs’ constitutional claims against Director\n\nDean. With respect to the procedural due-process claim, the court first\n\ndetermined that Plaintiffs had a protected property interest in CBA-level rates\n\nunder the Act, giving rise to restrictions on the director’s discretion in\n\ndetermining prevailing rates. However, the court noted that “more is\n\nrequired—Plaintiffs must show that they were deprived of the [property] interest\n\nwithout an adequate process by which they could obtain review of the\n\ndeprivation.” Id. at 160 (emphasis added). The court then stated that Plaintiffs\n\nfailed to establish that the processes available to challenge the director’s inaction\n\nwere constitutionally inadequate, in part because Plaintiffs did “not allege\n\nanywhere in the Complaint that they lacked the opportunity to challenge the 2009\n\nrates used by the Director.” Id. at 160–61. Accordingly, the court dismissed the\n\nprocedural due-process claim against Director Dean.\n\n The district court denied Defendants’ motion to dismiss Plaintiffs’\n\nsubstantive due-process claim against Director Dean, however. The court\n\nreasoned that the failure to set new rates, despite the assurance provided by the\n\nsecretary’s counsel during oral arguments before the New Mexico Supreme Court,\n\nwas sufficient to show that the director deliberately and arbitrarily deprived\n\nPlaintiffs of a protected property right. Furthermore, the court stated the director\n\n 10\n\fviolated clearly-established law by depriving Plaintiffs of the wages and benefits\n\nto which they were entitled under the Act. According to the court, Plaintiffs’\n\nright to CBA-based wages and benefits was clearly established by the statute\n\nitself given that the plain language of the 2009 Amendments was susceptible to\n\nonly one reading—“that it guarantees that [the] minimum wage and benefit rates\n\nmust be equivalent to the rates negotiated in CBAs.” Id. at 166.\n\n Director Dean appealed, and Plaintiffs cross-appealed the dismissal of their\n\nclaims against Secretary Bussey and their procedural due-process claim against\n\nDirector Dean.\n\n II\n\n As in every matter, we must consider whether we have jurisdiction over all\n\naspects of this appeal. See Cellport Sys., Inc. v. Peiker Acustic GMBH & Co. KG,\n\n762 F.3d 1016, 1021 (10th Cir. 2014) (“It is our obligation always to be certain of\n\nour subject matter jurisdiction.” (quoting Russo v. Ballard Med. Prods., 550 F.3d\n\n1004, 1009 (10th Cir. 2008))).\n\n A\n\n With respect to Director Dean’s appeal in Case No. 17-2072, we exercise\n\njurisdiction over the district court’s denial of his qualified-immunity defense\n\npursuant to 28 U.S.C. § 1291. See Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009)\n\n(“[T]his Court has been careful to say that a district court’s order rejecting\n\nqualified immunity at the motion-to-dismiss stage of a proceeding is a ‘final\n\n 11\n\fdecision’ within the meaning of § 1291.”); accord Brown v. Montoya, 662 F.3d\n\n1152, 1162 (10th Cir. 2011).\n\n B\n\n Our jurisdiction to hear Plaintiffs’ cross-appeal in Case No. 17-2079 is less\n\nclear. We ultimately conclude that we do not have jurisdiction to hear this\n\nappeal.\n\n We normally lack jurisdiction over a partial dismissal of a complaint\n\nbecause such dismissals do not constitute final, appealable decisions under\n\n§ 1291. See McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1104 (10th Cir.\n\n2002) (“Because the dismissal . . . adjudicated fewer than all the claims and\n\nliabilities of all the parties, it was not a final appealable order . . . .”). However,\n\nthe discretionary doctrine of pendent appellate jurisdiction provides an exception\n\nto this rule, allowing us to exercise jurisdiction over an “otherwise nonfinal and\n\nnonappealable lower court decision that overlaps with an appealable decision.”\n\nCox v. Glanz, 800 F.3d 1231, 1255 (10th Cir. 2015) (quoting Moore v. City of\n\nWynnewood, 57 F.3d 924, 929 (10th Cir. 1995)).\n\n Our exercise of pendent jurisdiction is “only appropriate” in either of two\n\nscenarios: (1) “when ‘the otherwise nonappealable decision is inextricably\n\nintertwined with the appealable decision,’” or (2) “where review of the\n\nnonappealable decision is necessary to ensure meaningful review of the\n\nappealable one.” Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1148 (10th\n\n 12\n\fCir. 2011) (quoting Tarrant Reg’l Water Dist. v. Sevenoaks, 545 F.3d 906, 915\n\n(10th Cir. 2008)).\n\n Plaintiffs face several obstacles in establishing pendent jurisdiction over\n\ntheir cross-appeal. First, the exercise of pendent jurisdiction is generally\n\ndisfavored as applied to cases in which primary appellate jurisdiction is based on\n\nthe denial of qualified immunity. See Cox, 800 F.3d at 1255; accord Bryson v.\n\nGonzales, 534 F.3d 1282, 1285–86 (10th Cir. 2008). After all, the collateral order\n\ndoctrine, used to appeal from denials of qualified immunity, “is premised on the\n\nability to decide the qualified immunity issue ‘in isolation from the remaining\n\nissues of the case,’” making it “hard to reconcile” with pendent jurisdiction.\n\nBryson, 534 F.3d at 1285 (quoting Mitchell v. Forsyth, 472 U.S. 511, 529 n.10\n\n(1985)).\n\n Moreover, Plaintiffs’ briefing does not adequately support their assertion\n\nthat we may exercise pendent jurisdiction over their claims. And it is beyond\n\nperadventure that it is Plaintiffs’ burden to make such a jurisdictional showing.\n\nSee, e.g., Raley v. Hyundai Motor Co., 642 F.3d 1271, 1275 (10th Cir. 2011)\n\n(“Where an appellant fails to lead, we have no duty to follow. It is the\n\nappellant’s burden, not ours, to conjure up possible theories to invoke our legal\n\nauthority to hear her appeal.”); accord E.E.O.C. v. PJ Utah, LLC, 822 F.3d 536,\n\n542 n.7 (10th Cir. 2016). Their entire argument on this threshold matter consists\n\nof a single conclusory sentence found in, respectively, their opening and reply\n\n\n 13\n\fbriefs. See Pls.’ Resp. Br. at 1 (contending that this court “could, and should,\n\nassert pendent jurisdiction over [this] cross-appeal”); accord Pls.’ Reply Br. at 1. 1\n\nPlaintiffs present no analysis or argument to support either acceptable basis for\n\ngranting relief—viz., that their claims on cross-appeal are “inextricably\n\nintertwined” with the director’s appeal, or that consideration of their cross-appeal\n\nis “necessary for a full assessment of the appealable issue.” Crowe & Dunlevy,\n\n640 F.3d at 1148 (quoting Sevenoaks, 545 F.3d at 915). 2 By providing us with\n\n\n 1\n To avoid confusion in this consolidated appeal and cross-appeal, we\nrefer to the parties’ briefs as follows:\n\n• Defendant/Appellant Jason Dean’s Brief in Chief = Def.’s Opening Br.\n• Appellees’ Principal and Response Brief = Pls.’ Resp. Br.\n• Defendant/Appellant Jason Dean’s and Defendant/Cross-Appellee’s\n Response and Reply Brief = Defs.’ Reply Br.\n• Appellees’ Reply Br. = Pls.’ Reply Br.\n 2\n Rather, Plaintiffs assert without analysis that this court “has\npend[e]nt jurisdiction” over their claims in light of Primas v. City of Oklahoma\nCity, 958 F.2d 1506 (10th Cir. 1992), a case involving a number of appeals\nrelating to a civil-rights action brought by a former city employee against the city\nand city officials. Pls.’ Reply Br. at 1. There, this court exercised pendent\njurisdiction over a cross-appeal from an interlocutory appeal of a denial of\nqualified immunity, concluding that the pendent claim—an appeal from the\ndistrict court’s determination that the plaintiff did not have a property interest in\ncontinued employment with the city—involved issues that were “factually and\nlegally intertwined with the [non-pendent] issues on appeal” that the city officials\nraised. Primas, 958 F.2d at 1512. To be sure, the cases that the Primas court\nrelied upon in coming to this conclusion employed the aforementioned pendent-\njurisdiction framework: they considered whether the appeals were inextricably\nintertwined or whether reviewing the pendent issue was required to adequately\nassess the appealable issue. See Micro Motion, Inc. v. Kane Steel Co., 894 F.2d\n1318, 1320 (Fed. Cir. 1990); Barrett v. United States, 798 F.2d 565, 571 (2d Cir.\n1986). As such, by relying on Primas, Plaintiffs do point us in the direction of\n (continued...)\n\n 14\n\fbare assertions rather than analytical guidance, Plaintiffs effectively ask us to\n\n“make arguments for [them] that [they] did not make in [their appellate] briefs,”\n\nwhich we “will not” do. 3 Cox, 800 F.3d at 1256 (quoting O’Neal v. Ferguson\n\nConstr. Co., 237 F.3d 1248, 1257 n.1 (10th Cir. 2001)).\n\n Finally, even were we to overlook Plaintiffs’ failure to argue within the\n\npendent-jurisdiction framework, we would conclude that their claims do not\n\npresent either of the two scenarios where pendent jurisdiction may be\n\nappropriately exercised. With respect to Plaintiffs’ appeal of the district court’s\n\ndismissal of all claims against Secretary Bussey, the relevant question on appeal\n\nis whether Plaintiffs’ amended complaint adequately identified an “affirmative\n\nlink” between Secretary Bussey and the alleged deprivations in this case. Pls.’\n\nResp. Br. at 26. It is manifest that this question is not “inextricably intertwined”\n\nwith the appealable issue before us, i.e., whether Director Dean is entitled to\n\nqualified immunity as to Plaintiffs’ substantive due-process claim. Crowe &\n\nDunlevy, 640 F.3d at 1148 (“A pendent claim may be considered ‘inextricably\n\n\n\n 2\n (...continued)\nthe required analysis. But Plaintiffs do not actually apply that analysis to the\nfacts of this case, and we will not do it for them.\n 3\n The director did not address pendent jurisdiction in his briefing.\nUnlike Plaintiffs’ failure to argue within the pendent-jurisdiction framework,\nhowever, the director’s “silence on the matter is of no moment,” Cox, 800 F.3d\nat 1257 n.13, as we have an independent obligation to inquire into our own\njurisdiction regardless of whether it is challenged, see United States v. Battles,\n745 F.3d 436, 447 (10th Cir. 2014).\n\n 15\n\fintertwined’ only if it is ‘coterminous with, or subsumed in, the claim before the\n\ncourt on interlocutory appeal—that is, when the appellate resolution of the\n\ncollateral appeal necessarily resolves the pendent claim as well.’” (quoting\n\nMoore, 57 F.3d at 930)). Nor is appellate review of this question “necessary to\n\nensure meaningful review,” id. (quoting Sevenoaks, 545 F.3d at 915), of the issues\n\npresented in Director Dean’s qualified-immunity appeal, as evidenced by our\n\nanalysis of those issues, infra. See Cox, 800 F.3d at 1257 (“[W]e can\n\nundertake—indeed we have undertaken . . .—a meaningful analysis of Sheriff\n\nGlanz’s appeal from the denial of qualified immunity (i.e., the non-pendent claim)\n\nwithout exercising pendent jurisdiction over the official-capacity claim.”). As\n\nwas the case in Cox, in resolving the non-pendent appeal, “we [are] not required\n\nto decide the core issues implicated” in this ostensibly pendent matter, leaving us\n\nwith “grave doubt that there would be any appropriate basis for our exercise of\n\npendent jurisdiction.” Id.\n\n Our jurisdiction over Plaintiffs’ appeal from the dismissal of their\n\nprocedural due-process claim against Director Dean proves to be a closer call, but\n\nour conclusion is the same. It is axiomatic that procedural and substantive\n\ndue-process claims require distinct analyses, undermining the notion that this\n\npendent claim and the appealable claim are inextricably intertwined or that we\n\nmust review the procedural claim in order to adequately address the substantive\n\ndue-process claim that is properly before us. See Cleveland Bd. of Educ. v.\n\n\n 16\n\fLoudermill, 470 U.S. 532, 541 (1985) (“The point is straightforward: the Due\n\nProcess Clause provides that certain substantive rights—life, liberty, and\n\nproperty—cannot be deprived except pursuant to constitutionally adequate\n\nprocedures. The categories of substance and procedure are distinct. Were the\n\nrule otherwise, the Clause would be reduced to a mere tautology.”); Brown, 662\n\nF.3d at 1172 (noting that a judicial decision in “a procedural due process case . . .\n\ncannot support a clearly established substantive due process right” (citation\n\nomitted)); Brown, 662 F.3d at 1172 n.16 (“Insofar as Mr. Brown claims a\n\nsubstantive due process violation based on Officer Montoya’s placing him in the\n\nsex offender probation unit and directing him to register as a sex offender without\n\na hearing, Mr. Brown confuses substantive due process with procedural due\n\nprocess.”); United States v. Deters, 143 F.3d 577, 582 (10th Cir. 1998) (“Unlike\n\nprocedural due process, substantive due process protects a small number of\n\n‘fundamental rights’ from government interference regardless of the procedures\n\nused.”); see also Browder v. City of Albuquerque, 787 F.3d 1076, 1078 (10th Cir.\n\n2015) (“The Supreme Court has interpreted this language [i.e., of the Due Process\n\nClause] as guaranteeing not only certain procedures when a deprivation of an\n\nenumerated right takes place (procedural due process), but also as guaranteeing\n\ncertain deprivations won’t take place without a sufficient justification\n\n(substantive due process).”); [Wesley] Brown v. Cooke, 362 F. App’x 897, 899\n\n(10th Cir. 2010) (unpublished) (“[T]he district court did not specifically state in\n\n\n 17\n\fits opinion and order whether it considered a procedural due process claim, a\n\nsubstantive due process claim, or both. This omission is relevant because the\n\ncourt appeared to inject the more demanding ‘fundamental rights and liberties’\n\nanalysis from the substantive due process sphere into the ‘liberty interest’\n\nanalysis that pertains to the procedural due process inquiry.”).\n\n And though there is often some overlap between the two analyses when\n\nsubstantive and procedural due-process claims are raised together based on the\n\nsame facts, see Becker v. Kroll, 494 F.3d 904, 918 n.8 (10th Cir. 2007) (“Though\n\nit is sometimes helpful, as a matter of doctrine, to distinguish between substantive\n\nand procedural due process, the two concepts are not mutually exclusive, and\n\ntheir protections often overlap.” (quoting Albright v. Oliver, 510 U.S. 266, 301\n\n(1994) (Stevens, J. dissenting))), the issues here are quite distinct: Plaintiffs’\n\npendent action challenges the district court’s conclusion that there were adequate\n\nprocedural protections that Plaintiffs failed to invoke, whereas the non-pendent\n\nappeal challenges the court’s finding that the director’s actions shocked the\n\nconscience and violated clearly-established federal law. These considerations are\n\nnot inextricably intertwined, and review of the pendent action is not required for a\n\nmeaningful analysis of the non-pendent appeal. Indeed, the district court’s\n\nanalysis and even the parties’ briefing treat the two issues without overlap. See\n\nAplt.’s App. at 159–66; cf. Cox, 800 F.3d at 1257.\n\n\n\n\n 18\n\f Thus, given our general disfavor of pendent jurisdiction in the qualified-\n\nimmunity context, see Bryson, 534 F.3d at 1285–86, Plaintiffs’ dereliction of their\n\nburden to establish our jurisdiction over their cross-appeal, and our conclusion\n\nthat neither of the two accepted rationales for exercising pendent jurisdiction are\n\npresent here, we decline to exercise pendent jurisdiction over Plaintiffs’ cross-\n\nappeal. We consequently dismiss Plaintiffs’ cross-appeal in Case No. 17-2079 for\n\nlack of jurisdiction.\n\n\n\n III\n\n We next turn to the issue properly before us on appeal: whether the district\n\ncourt erred in denying Director Dean qualified immunity against Plaintiffs’\n\nsubstantive due-process claim. We first lay out the familiar motion-to-dismiss\n\nand qualified-immunity standards of review before concluding that the district\n\ncourt erred in denying Director Dean’s qualified-immunity defense. More\n\nspecifically, we hold that the Plaintiffs have failed to carry their burden of\n\nshowing that Director Dean’s actions violated clearly-established federal law.\n\n A\n\n 1\n\n “A motion for judgment on the pleadings under Rule 12(c) is treated as a\n\nmotion to dismiss under Rule 12(b)(6).” Atl. Richfield Co. v. Farm Credit Bank\n\nof Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000); accord Jacobsen v. Deseret\n\n 19\n\fBook Co., 287 F.3d 936, 941 n.2 (10th Cir. 2002). Therefore, we review de novo\n\nthe district court’s denial of Director Dean’s motion asserting a qualified-\n\nimmunity defense. See, e.g., Brokers’ Choice of America Inc. v. NBC Universal,\n\nInc., 861 F.3d 1081, 1102 (10th Cir. 2017) (noting that “we use the same de novo\n\nstandard of review” in reviewing a district court’s ruling on Rule 12(c) and Rule\n\n12)(b)(6)); Brown, 662 F.3d at 1162 (“We review the district court’s denial of a\n\nmotion to dismiss based on qualified immunity de novo.” (quoting Peterson v.\n\nJensen, 371 F.3d 1199, 1202 (10th Cir. 2004))); Ramirez v. Dep’t of Corrs.,\n\nColo., 222 F.3d 1238, 1240 (10th Cir. 2000) (reviewing de novo a district court’s\n\ndenial of a Rule 12(c) motion based on qualified immunity), abrogated on other\n\ngrounds by Crawford-El v. Britton, 523 U.S. 574 (1988), as recognized by\n\nCurrier v. Doran, 242 F.3d 905, 912, 916 (10th Cir. 2001).\n\n “To survive a motion to dismiss, a complaint must contain sufficient factual\n\nmatter, accepted as true, to state a claim to relief that is plausible on its face.”\n\nEmps.’ Ret. Sys. of R.I. v. Williams Cos., Inc., 889 F.3d 1153, 1161 (10th Cir.\n\n2018) (quoting Iqbal, 556 U.S. at 678). “A claim has facial plausibility when the\n\nplaintiff pleads factual content that allows the court to draw the reasonable\n\ninference that the defendant is liable for the misconduct alleged.” Free Speech v.\n\nFed. Election Comm’n, 720 F.3d 788, 792 (10th Cir. 2013) (quoting Iqbal, 556\n\nU.S. at 678). In making this assessment, we “accept as true ‘all well-pleaded\n\nfactual allegations in a complaint and view these allegations in the light most\n\n\n 20\n\ffavorable to the plaintiff.’” Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 (10th\n\nCir. 2013) (quoting Kerber v. Qwest Grp. Life Ins. Plan, 647 F.3d 950, 959 (10th\n\nCir. 2011)).\n\n 2\n\n The qualified-immunity doctrine protects public employees from both\n\nliability and “from the burdens of litigation” arising from their exercise of\n\ndiscretion. Allstate Sweeping, LLC v. Black, 706 F.3d 1261, 1266 (10th Cir.\n\n2013); see Elder v. Holloway, 510 U.S. 510, 514 (1994) (“The central purpose of\n\naffording public officials qualified immunity from suit is to protect them ‘from\n\nundue interference with their duties and from potentially disabling threats of\n\nliability.’” (quoting Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982))). When a\n\ndefendant raises the qualified-immunity defense, “the onus is on the plaintiff to\n\ndemonstrate ‘(1) that the official violated a statutory or constitutional right, and\n\n(2) that the right was “clearly established” at the time of the challenged\n\nconduct.’” Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015) (emphasis\n\nadded) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)); accord Cillo v.\n\nCity of Greenwood Village, 739 F.3d 451, 460 (10th Cir. 2013).\n\n We may address the two prongs of the qualified-immunity analysis in either\n\norder: “[I]f the plaintiff fails to establish either prong of the two-pronged\n\nqualified-immunity standard, the defendant prevails on the defense.” A.M. v.\n\nHolmes, 830 F.3d 1123, 1134–35 (10th Cir. 2016), cert. denied, 137 S. Ct. 2151\n\n\n 21\n\f(2017). Here, our analysis focuses on the clearly-established-law prong, and we\n\nconclude that Plaintiffs have failed to demonstrate that Director Dean violated\n\ntheir clearly-established rights; consequently, Director Dean prevails on his\n\nqualified-immunity defense. Because we need not do so, we do not reach the first\n\nprong of the qualified-immunity standard—that is, whether Director Dean’s\n\nconduct in failing to set prevailing rates actually violated Plaintiffs’ substantive\n\ndue-process rights.\n\n “A clearly established right is one that is ‘sufficiently clear that every\n\nreasonable official would have understood that what he is doing violates that\n\nright.’” Mullenix v. Luna, --- U.S. ----, 136 S. Ct. 305, 308 (2015) (per curiam)\n\n(quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). Ordinarily, “[a]\n\nplaintiff may satisfy this [clearly-established-law] standard by identifying an\n\non-point Supreme Court or published Tenth Circuit decision [that establishes the\n\nunlawfulness of the defendant’s conduct]; alternatively, ‘the clearly established\n\nweight of authority from other courts must have found the law to be as the\n\nplaintiff maintains.’” Quinn, 780 F.3d at 1005 (quoting Weise v. Casper, 593\n\nF.3d 1163, 1167 (10th Cir. 2010)); accord A.M., 830 F.3d at 1135; Cox, 800 F.3d\n\nat 1247. As the Supreme Court has instructed, this “do[es] not require a case\n\ndirectly on point, but existing precedent must have placed the statutory or\n\nconstitutional question [regarding the illegality of the defendant’s conduct]\n\nbeyond debate.” al-Kidd, 563 U.S. at 741; see Estate of B.I.C. v. Gillen, 761 F.3d\n\n\n 22\n\f1099, 1106 (10th Cir. 2014) (“Although it is not necessary for the facts in the\n\ncited authority to correspond exactly to the situation the plaintiff complains of,\n\nthe ‘plaintiff must demonstrate a substantial correspondence between the conduct\n\nin question and prior law allegedly establishing that the defendant’s actions were\n\nclearly prohibited.’” (quoting Trotter v. Regents of Univ. of N.M., 219 F.3d 1179,\n\n1184 (10th Cir. 2000))). In this vein, the Court has “repeatedly told [lower]\n\ncourts . . . not to define clearly established law at a high level of generality.” al-\n\nKidd, 563 U.S. at 742 (citation omitted); accord Mullenix, 136 S. Ct. at 308.\n\n“[D]oing so avoids the crucial question [of] whether the official acted reasonably\n\nin the particular circumstances that he or she faced.” Plumhoff v. Rickard, 572\n\nU.S. 765, 779 (2014) (emphasis added); accord Estate of B.I.C., 761 F.3d at 1106.\n\nIn this connection, it bears underscoring that the federal right allegedly violated\n\nmust have been “clearly established at the time of the defendant’s unlawful\n\nconduct.” Cillo, 739 F.3d at 460.\n\n In furthering the protective aims of qualified immunity, it is important that\n\ncourts be especially sensitive to the need to ensure “a substantial correspondence\n\nbetween the conduct in question and prior law allegedly establishing that the\n\ndefendant’s actions were clearly prohibited,” Estate of B.I.C., 761 F.3d at 1106\n\n(quoting Trotter, 219 F.3d at 1184)), where the legal standards of liability under\n\nthe prior law are broad and general or depend on a balancing of discrete and\n\nsometimes opposing interests. See Mullenix, 136 S. Ct. at 308 (holding that\n\n\n 23\n\f“specificity [in defining clearly-established law] is especially important in the\n\nFourth Amendment context” because “[i]t is sometimes difficult for an officer to\n\ndetermine how the relevant legal doctrine . . . will apply to the factual situation\n\nthe officer confronts” (second alteration in original) (quoting Saucier v. Katz, 533\n\nU.S. 194, 205 (2001), overruled in part on other grounds by Pearson v. Callahan,\n\n555 U.S. 223, 236 (2009), as recognized by Hobbs ex rel. Hobbs v. Zenderman,\n\n579 F.3d 1171, 1183 (10th Cir. 2009))); Aldaba v. Pickens, 844 F.3d 870, 877\n\n(10th Cir. 2016) (“In the Fourth Amendment context, ‘the result depends very\n\nmuch on the facts of each case,’ and the precedents must ‘squarely govern’ the\n\npresent case [to constitute clearly-established law].” (quoting Mullenix, 136 S. Ct.\n\nat 309)); Medina v. City & County of Denver, 960 F.2d 1493, 1498 (10th Cir.\n\n1992) (addressing a substantive due-process claim and stating that “allegations of\n\nconstitutional violations that require courts to balance competing interests may\n\nmake it more difficult to find the law ‘clearly established’ when assessing claims\n\nof qualified immunity”), overruled in part on other grounds by County of\n\nSacramento v. Lewis, 523 U.S. 833 (1998), as recognized by Morris v. Noe, 672\n\nF.3d 1185, 1197 n.5 (10th Cir. 2012); Melton v. City of Oklahoma City, 879 F.2d\n\n706, 729 (10th Cir. 1989) (addressing a retaliatory-discharge claim under the First\n\nAmendment, and noting that, “because a rule of law determined by a balancing of\n\ninterests is inevitably difficult to clearly anticipate, it follows that where . . .\n\nbalancing is required, the law is less likely to be well established than in other\n\n\n 24\n\fcases”), modified on other grounds on reh’g, 928 F.2d 920 (10th Cir. 1991) (en\n\nbanc). The legal standard governing liability under the rubric of substantive due\n\nprocess evinces these attributes.\n\n Specifically, the standard for liability for a violation of a person’s\n\nsubstantive due-process rights is broad and general. See Washington v.\n\nGlucksberg, 521 U.S. 702, 722 (1997) (stating that the rights protected under\n\nsubstantive due process have “never [been] fully clarified, to be sure, and perhaps\n\n[are] not capable of being fully clarified”); Collins v. City of Harker Heights, 503\n\nU.S. 115, 125 (1992) (describing substantive due process as an “unchartered area”\n\nin which the “guideposts for responsible decisionmaking . . . are scarce and\n\nopen-ended”). Furthermore and relatedly, consideration of whether a person’s\n\nsubstantive due-process rights have been infringed “requires a ‘balancing [of the\n\nperson’s constitutionally protected] interests against the relevant state interests.’”\n\nJ.B. v. Washington Cty., 127 F.3d 919, 927 (10th Cir. 1997) (quoting Youngberg\n\nv. Romeo, 457 U.S. 307, 321 (1982)).\n\n Thus, in our assessment here of whether Director Dean’s conduct violated\n\nPlaintiffs’ clearly-established substantive due-process rights, we must be\n\nespecially sensitive to whether existing relevant precedents at the time he acted\n\n“squarely govern[ed],” Mullenix, 136 S. Ct. at 310, “the particular circumstances\n\nthat he . . . faced,” Plumhoff, 572 U.S. at 779 (emphasis added), and demonstrated\n\n\n\n\n 25\n\fthat the “violative nature of the particular conduct is clearly established.”\n\nAldaba, 844 F.3d at 877 (quoting Mullenix, 136 S. Ct. at 308).\n\n\n\n B\n\n Director Dean challenges the district court’s conclusion as to both prongs\n\nof the qualified-immunity analysis, i.e., that he violated Plaintiffs’ substantive\n\ndue-process rights and that he did so in violation of clearly-established federal\n\nlaw. We agree with Director Dean that he did not violate clearly-established\n\nfederal law and thus conclude that he is entitled to the defense of qualified\n\nimmunity. However, we first address Plaintiffs’ argument that the\n\nqualified-immunity defense is unavailable because Director Dean’s obligation to\n\nset CBA-based rates was a ministerial duty, rather than a discretionary function of\n\nhis position.\n\n 1\n\n Qualified immunity only shields an official in the exercise of his or her\n\ndiscretion. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009)\n\n(“Under the qualified immunity doctrine, ‘government officials performing\n\ndiscretionary functions, generally are shielded from liability for civil damages\n\ninsofar as their conduct does not violate clearly established [federal] statutory or\n\nconstitutional rights of which a reasonable person would have known.’”\n\n(alteration in original) (emphasis added) (quoting Harlow, 457 U.S. at 818)).\n\n\n 26\n\fPlaintiffs contend that Director Dean’s duty to issue new prevailing rates for\n\nwages and fringe benefits pursuant to the Act was nondiscretionary, rendering\n\nqualified immunity inapplicable here. For support, they rely primarily on the\n\nNew Mexico Supreme Court’s statement in Dean that “under the Act, specifically\n\nSection 13-4-11, the Director has a mandatory, nondiscretionary duty to set\n\nprevailing wage and prevailing benefit rates the same as those negotiated in\n\napplicable CBAs.” 353 P.3d at 1218. Director Dean responds that his duty was\n\nin fact discretionary because it involved interpreting the Act.\n\n We agree with Director Dean that his duty to publish prevailing rates\n\ninvolved substantial discretion as that term applies in the federal qualified-\n\nimmunity context, and that he therefore may avail himself of the qualified-\n\nimmunity defense. Director Dean’s implementation of the Act required him to\n\ninterpret the language of a state statute. And although the New Mexico Supreme\n\nCourt eventually held that Defendants’ interpretation was contrary to the 2009\n\nAmendments, see Dean, 353 P.3d at 1218, interpretation of state law is exactly\n\nthe kind of discretionary function for which the qualified-immunity defense\n\nagainst federal liability applies.\n\n The Supreme Court made this clear in Davis v. Scherer, 468 U.S. 183\n\n(1984), where it reversed the district court’s denial of qualified immunity based\n\nupon a finding that the defendants had violated a clear mandate of state law in\n\nterminating plaintiff’s employment without following certain pretermination\n\n\n 27\n\fprocedures. Id. at 193. The Court proceeded to craft a narrow scope for the\n\n“ministerial duty” exception to qualified immunity. Id. at 196 n.14. The Court\n\nexplained that a law that “fails to specify the precise action that the official must\n\ntake in each instance creates only discretionary authority; and that authority\n\nremains discretionary however egregiously it is abused.” Id. Thus, the Davis\n\nCourt reasoned, even assuming that the defendants had “ignored a clear legal\n\ncommand” to follow various pre-termination procedures before ending the\n\nplaintiff’s employment, this duty was discretionary given that the state regulation\n\nin question left to them to interpret various terms contained in those\n\npretermination procedures, including “a complete investigation” and a “thorough\n\nstudy of all information.” Id. These indefinite terms provided the defendants\n\nwith a “substantial measure of discretion” and thus allowed them to exercise\n\nauthority that is discretionary, rather than ministerial. Id.\n\n Similarly, the Act left to Director Dean a substantial measure of discretion\n\nin interpreting its terms. The Act requires the director to establish prevailing\n\nrates “at the same wage rates and fringe benefit rates used in collective bargaining\n\nagreements,” but leaves to the director substantial discretion to determine the\n\nmethod of collecting and aggregating data, and, perhaps most importantly for our\n\npresent inquiry, the timetable for doing so. N.M. S TAT . § 13-4-11(B) (West\n\n2009).\n\n\n\n\n 28\n\f Notably, Plaintiffs fail to cite any caselaw addressing federal qualified\n\nimmunity that would support a contrary result. And though the New Mexico\n\nSupreme Court held that “the Director has a mandatory, nondiscretionary duty to\n\nset the same prevailing wage and prevailing benefit rates as those negotiated in\n\napplicable CBAs,” Dean, 353 P.3d at 1214, the analytical context of the state\n\ncourt’s description of Director Dean’s duty as “mandatory” and\n\n“nondiscretionary” is important. The court’s description relates to the availability\n\nof mandamus relief under New Mexico law. Id. at 1214. While we ordinarily\n\ndefer to a state court’s interpretation of a state statute, see United States v.\n\nDeGasso, 369 F.3d 1139, 1145 (10th Cir. 2004) (“It is axiomatic that state courts\n\nare the final arbiters of state law.”), the issue before us concerns not whether\n\nmandamus is available under New Mexico law, but whether qualified immunity\n\nbars liability under federal law. We therefore apply a federal standard to\n\ndetermine whether Director Dean’s obligations were sufficiently discretionary to\n\nwarrant the protections of the qualified-immunity defense under federal law, and\n\nwe conclude that the United States Supreme Court’s language in Davis compels\n\nour conclusion that such protections are available here.\n\n Director Dean’s interpretation and implementation of the Act were\n\ntherefore matters within his discretion, and he is protected from liability under\n\n§ 1983 unless his conduct violated clearly-established federal law.\n\n 2\n\n\n 29\n\f Turning finally to the issue of whether Director Dean is entitled to qualified\n\nimmunity under the circumstances giving rise to this § 1983 suit, we conclude\n\nthat his actions did not violate clearly-established federal law. Specifically, we\n\nconclude that Plaintiffs have failed to meet the second prong of the qualified-\n\nimmunity analysis—i.e., Plaintiffs have failed to identify clearly-established law\n\nthat would have put Director Dean on notice that his conduct would give rise to\n\nliability under federal law—and thus we need not reach the first prong of the\n\nqualified-immunity analysis, i.e., whether Director Dean’s conduct in fact\n\nviolated Plaintiffs’ rights to substantive due process. See A.M., 830 F.3d\n\nat 1134–35.\n\n The district court denied qualified immunity based upon a finding that “the\n\nAct clearly and unambiguously required the Director to set prevailing wage rates\n\naccording to CBAs.” Aplt.’s App. at 165. Plaintiffs rely on this reasoning and\n\nurge us to affirm.\n\n But the district court’s reasoning is flawed because it equates a violation of\n\na clear obligation under state law 4 with a violation of clearly-established federal\n\n 4\n Director Dean argues, in his opening brief, that he followed a\n“normal process” by refraining from implementing the Act during the pendency of\nthe challenge before the LIC. Def.’s Opening Br. at 27. In a single sentence, he\nargues that “state law was ambiguous at the time,” given that an appeal to the LIC\ntypically activates an automatic stay, N.M. C ODE R. § 11.1.2.17(B)(1), and the\nLIC never acted to lift the stay despite the NMBCTC’s request to waive the stay.\nSee Def.’s Opening Br. at 27–28.\n\n (continued...)\n\n 30\n\flaw. Whether Director Dean violated clearly-established state law in failing to set\n\nCBA-based rates, however, is an entirely separate question from whether that\n\nfailure violated clearly-established federal law. And even if Director Dean had\n\nnotice that his reading of the Act was incorrect as a matter of state law, this\n\nwould not necessarily deprive him of qualified immunity from liability under\n\nfederal law. See Davis, 468 U.S. at 194 (“Officials sued for constitutional\n\nviolations do not lose their qualified immunity merely because their conduct\n\nviolates some statutory or administrative provision [of state law].”); Stanley v.\n\nGallegos, 852 F.3d 1210, 1224 (10th Cir. 2017) (Holmes, J., concurring in the\n\njudgment) (noting that Davis forecloses the argument that “if an official acts\n\noutside of his scope of authority, as defined by clearly established state law, he\n\n‘forfeits’ his right to have a federal court in a § 1983 action consider the merits of\n\nhis defense that his actions did not violate clearly established federal law”); cf.\n\n\n\n 4\n (...continued)\n However, during oral arguments before this court, Director Dean’s counsel\nconceded that there was no confusion regarding the director’s state-law\nobligations—irrespective of whether a stay was in effect—once the secretary’s\ncounsel represented to the New Mexico Supreme Court that DWS would update\nthe prevailing rates. Thus, we deem any argument that the director’s obligation\nunder state law was ambiguous as either waived due to inadequate briefing on\nappeal or abandoned by counsel’s affirmative admission during oral argument, see\nUnited States v. Cooper, 654 F.3d 1104, 1128 (10th Cir. 2011); United States v.\nCarrasco-Salazar, 494 F.3d 1270, 1272–73 (10th Cir. 2007), at least insofar as\nthe argument bears upon the clearly-established-law prong of the qualified-\nimmunity analysis—viz., insofar as any ambiguity might have supported the idea\nthat a reasonable state official in Director Dean’s position would not have been on\nfair notice of a violation of federal law.\n\n 31\n\fDahn v. Amedei, 867 F.3d 1178, 1189 (10th Cir. 2017) (reversing denial of\n\nqualified immunity upon finding no violation of clearly-established federal law,\n\nbut noting that Defendants’ conduct could “very well expose them to tort\n\nliability” under state law).\n\n Neither the district court nor Plaintiffs have identified any case from the\n\nSupreme Court or this court finding a defendant liable under federal law in\n\nfactually similar circumstances, i.e., where a public official in the same or similar\n\nposition as Director Dean was held liable under federal law for failing to set rates\n\nfor wages and fringe benefits (or for similar items) in apparent contravention of\n\nstate law that required him to do so. Given that Plaintiffs bear the burden of\n\npresenting such a case to overcome qualified immunity, see Gutierrez v. Cobos,\n\n841 F.3d 895, 900 (10th Cir. 2016), this failure proves fatal to their position.\n\n Instead, Plaintiffs cite two factually inapposite cases in arguing that the Act\n\ncreated a clearly-established right for purposes of qualified immunity by virtue of\n\nits “clear and unambiguous” description of Director Dean’s duties. These cases,\n\nhowever, do not speak to the legal issue present here and are without controlling\n\nforce in this circuit.\n\n The first is Gardner v. Williams, 56 F. App’x 700 (6th Cir. 2003)\n\n(unpublished). Plaintiffs’ reliance on Gardner is patently misguided. To begin, it\n\nis notable that Gardner is an out-of-circuit unpublished decision; even assuming\n\nthat such a decision is entitled to any consideration at all in the clearly-\n\n\n 32\n\festablished-law analysis, that consideration would be minimal. See Morris, 672\n\nF.3d at 1197 n.5 (observing that “a single unpublished district court opinion is not\n\nsufficient to render the law clearly established,” but, in discussing “unpublished\n\ncases from this court,” noting that “we have never held that a district court must\n\nignore unpublished opinions in deciding whether the law is clearly established”);\n\nMecham v. Frazier, 500 F.3d 1200, 1206 (10th Cir. 2007) (noting, in the context\n\nof discussing the import of an unpublished Tenth Circuit decision, that “[a]n\n\nunpublished opinion, . . . even if the facts were closer, provides little support for\n\nthe notion that the law is clearly established”); cf. Grissom v. Roberts, 902 F.3d\n\n1162, 1168 (10th Cir. 2018) (acknowledging the “little support” holding of\n\nMecham but noting that, on the other hand, “an unpublished opinion can be quite\n\nrelevant in showing that the law was not clearly established,” specifically when\n\n“the same alleged victim and same defendant conduct are involved”).\n\n Furthermore, even focusing on the merits, Gardner lends Plaintiffs little\n\nsuccor. There, a panel of the Sixth Circuit concluded that a state trooper had\n\nviolated an individual’s clearly-established Fourth Amendment rights by arresting\n\nhim without probable cause given that it was “unambiguous and not reasonably\n\nopen to an alternative interpretation” that the state statutes used to justify the\n\narrest were inapplicable. 56 F. App’x at 704. First of all, Gardner is patently\n\ndistinguishable because there it was undisputed that effecting an arrest without\n\nprobable cause would constitute a violation of Fourth Amendment Rights. In\n\n\n 33\n\fcontrast, here it is disputed that Director Dean’s failure to determine prevailing\n\nrates constituted any violation of federal rights. More fundamentally, Gardner\n\nsimply highlights in unremarkable fashion the “inevitable importance” in certain\n\nlegal settings of state law to our assessment of whether the plaintiff may “show a\n\nviolation of his federal rights.” Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th\n\nCir. 2012). “The basic federal constitutional right of freedom from arrest without\n\nprobable cause is undoubtedly clearly established by federal cases. But the\n\nprecise scope of that right uniquely depends on the contours of a state’s\n\nsubstantive criminal law” where, as in Gardner, the issue is whether the law\n\nenforcement officer “had probable cause based on a state criminal statute.” Id.\n\nat 1300–01 (citation omitted) (citing Keylon v. City of Albuquerque, 535 F.3d\n\n1210, 1216 (10th Cir. 2008)). “[H]owever, we underscore that—even when it is\n\nessential to discern the content of state law—the rights being vindicated through\n\n§ 1983 are federal.” A.M., 830 F.3d at 1141. Gardner does not purport to alter\n\nthis federal-law focus of § 1983 liability. Nor does Gardner suggest that state-\n\nlaw violations play a similarly significant role in the context of substantive due-\n\nprocess violations, much less clearly establish that Director Dean’s alleged\n\nviolation of clearly-established state law in failing to set CBA-based rates would\n\neffect a violation of substantive due process. Thus, Plaintiffs’ reliance on\n\nGardner is unavailing.\n\n\n\n\n 34\n\f The second case Plaintiffs cite is Brooks v. George County, 84 F.3d 157\n\n(5th Cir. 1996). Brooks, however, is inapposite. There, the Fifth Circuit denied\n\nqualified immunity to a sheriff that had failed to meet his obligation under state\n\nlaw to keep records that were to be used to pay pretrial detainees. Id. at 164–65.\n\nBut the Fifth Circuit’s decision to deny qualified immunity there rested entirely\n\non its determination, based on a reading of the state statute in question, that the\n\nsheriff’s duty was non-discretionary. Id. However, as stated supra, we have\n\ndetermined that Director Dean’s duties under the 2009 Amendments were in fact\n\ndiscretionary for purposes of qualified immunity under federal law. Therefore,\n\nBrooks does not help Plaintiffs either.\n\n Because Plaintiffs have offered no authority clearly establishing that\n\nDirector Dean violated their substantive due-process rights under federal law by\n\nfailing to discharge his state-law obligation under the Act to publish CBA-based\n\nrates for wages and fringe benefits, we conclude that Director Dean is entitled to\n\nqualified immunity. 5\n\n IV\n\n\n\n 5\n Since our inquiry here solely concerned whether Director Dean\nviolated clearly-established federal law for purposes of determining whether he is\nentitled to qualified immunity from liability under federal law, see Davis, 468\nU.S. at 194, we have no occasion to question the New Mexico Supreme Court’s\nreading of the 2009 Amendments, or to decide whether Director Dean’s conduct\nin fact violated state law. Our opinion thus does not preclude Plaintiffs from\nseeking any available relief for Defendants’ purported violations of New Mexico\nlaw in state court.\n\n 35\n\f For the reasons discussed above, we DISMISS Plaintiffs’ appeal of the\n\ngrant of qualified immunity in Case No. 17-2079 for lack of jurisdiction, and we\n\nREVERSE the district court’s judgment in Case No. 17-2072 and REMAND the\n\ncase and instruct the court to grant Director Dean qualified immunity with respect\n\nto Plaintiffs’ substantive due-process claim.\n\n\n\n\n 36\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Randy CUMMINGS ; Cruz Gallegos ; Robert J. Garcia ; Richard Gonzales; Eloy A. Jaramillo; David Larranaga; Joseph Lopez; Rick Lopez ; David Montano; Angelo Rinaldi ; Chris Sweeney ; Josh Tillinghast; Tomas Trujillo; Jeffrey S. Wade; Joshua Hoselton; Charles W. Lees; Jaime Marquez ; Robert Mendoza; Armando Anchondo; Gustavo Berrospe; Reyes Cabriales; Sergio Escobedo ; Jason Head; Nick Hinojos; Robert G. Hitzman; Michael Lopez; Jose Rodriguez; Sergio A. Rojo; Richard Tenorio; Cesar Torres ; Grant Willis; Harold Brown; Rene Carrillo; Henry Nez, Jr.; Kurt Johnson; Jesus Aguilar-Murillo; Martin F. Alvarez; Arthur Archuleta; Enrique Corona; Ronald Hubbard ; Andrew M. Lugo; Henry Lujan ; David Carr; D. Jeremiah Cordova; Kevin Charvea; Nathan Espalin; Levi Gutierrez; Dennis Moore; Robert Moreno ; Levi Olivas; Thomas D. Payne; Bryan Wheeler, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellees/Cross-Appellants, v. Jason DEAN, as the Director of the Labor Relations Division of the New Mexico Department of Workforce Solutions, in His Individual Capacity, Defendant-Appellant/Cross-Appellee and Celina Bussey, Secretary of the New Mexico Department of Workforce Solutions, in Her Individual Capacity, Defendant/Cross-Appellee.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-01-24\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n Tenth Circuit\\n\\n January 24, 2019\\n PUBLISH\\n Elisabeth A. Shumaker\\n UNITED STATES COURT OF APPEALS Clerk of Court\\n\\n TENTH CIRCUIT\\n\\n\\n\\nRANDY CUMMINGS; CRUZ\\nGALLEGOS; ROBERT J. GARCIA;\\nRICHARD GONZALES; ELOY A.\\nJARAMILLO; DAVID\\nLARRANAGA; JOSEPH LOPEZ;\\nRICK LOPEZ; DAVID MONTANO;\\nANGELO RINALDI; CHRIS\\nSWEENEY; JOSH TILLINGHAST;\\nTOMAS TRUJILLO; JEFFREY S.\\nWADE; JOSHUA HOSELTON;\\nCHARLES W. LEES; JAIME\\nMARQUEZ; ROBERT MENDOZA;\\nARMANDO ANCHONDO;\\nGUSTAVO BERROSPE; REYES\\nCABRIALES; SERGIO ESCOBEDO;\\nJASON HEAD; NICK HINOJOS;\\nROBERT G. HITZMAN; MICHAEL\\nLOPEZ; JOSE RODRIGUEZ;\\nSERGIO A. ROJO; RICHARD\\nTENORIO; CESAR TORRES;\\nGRANT WILLIS; HAROLD BROWN;\\nRENE CARRILLO; HENRY NEZ,\\nJR.; KURT JOHNSON; JESUS\\nAGUILAR-MURILLO; MARTIN F.\\nALVAREZ; ARTHUR ARCHULETA;\\nENRIQUE CORONA; RONALD\\nHUBBARD; ANDREW M. LUGO;\\nHENRY LUJAN; DAVID CARR; D.\\nJEREMIAH CORDOVA; KEVIN\\nCHARVEA; NATHAN ESPALIN;\\nLEVI GUTIERREZ; DENNIS\\nMOORE; ROBERT MORENO; LEVI\\nOLIVAS; THOMAS D. PAYNE;\\nBRYAN WHEELER, on behalf of\\nthemselves and all others similarly\\n\\f situated,\\n\\n Plaintiffs - Appellees/Cross-\\n Appellants,\\n v. Nos. 17-2072 & 17-2079\\n JASON DEAN, as the Director of the\\n Labor Relations Division of the New\\n Mexico Department of Workforce\\n Solutions, in his individual capacity,\\n\\n Defendant - Appellant/Cross-\\n Appellee\\n\\n and\\n\\n CELINA BUSSEY, Secretary of the\\n New Mexico Department of Workforce\\n Solutions, in her individual capacity,\\n\\n Defendant/Cross-Appellee.\\n\\n\\n Appeal from the United States District Court\\n for the District of New Mexico\\n (D.C. No. 1:16-CV-00951-JAP-KK)\\n\\n\\nThomas Bird, Keleher & McLeod, P.A., Albuquerque, New Mexico (Jason J.\\nLewis, Law Office of Jason J. Lewis, LLC, Albuquerque, New Mexico; Marshall\\nJ. Ray, Law Offices of Marshall J. Ray, LLC, Albuquerque, New Mexico; and\\nSean Olivas, Keleher & McLeod, P.A., Albuquerque, New Mexico, on the briefs),\\nfor Defendant - Appellant/Cross-Appellee and Defendant/Cross-Appellee.\\n\\nShane Youtz (James A. Montalbano and Stephen Curtice, with him on the briefs),\\nYoutz & Valdez, P.C., Albuquerque, New Mexico, for Plaintiffs - Appellees\\n/Cross-Appellants.\\n\\n\\nBefore LUCERO, HOLMES, and EID, Circuit Judges.\\n\\n 2\\n\\fHOLMES, Circuit Judge.\\n\\n\\n Jason Dean, director of the Labor Relations Division of the New Mexico\\n\\nDepartment of Workforce Solutions (“DWS”), raises this appeal from the district\\n\\ncourt’s denial of qualified immunity against the claim that he violated Plaintiffs’\\n\\nconstitutional rights to substantive due process by failing to issue prevailing rates\\n\\nfor wages and fringe benefits as required by New Mexico law.\\n\\n In the action below, Plaintiffs, individuals who worked on public works\\n\\nprojects in New Mexico, filed claims under 42 U.S.C. § 1983 on behalf of\\n\\nthemselves and others similarly situated, alleging that Director Dean and Celina\\n\\nBussey, secretary of the DWS, violated Plaintiffs’ procedural and substantive\\n\\ndue-process rights by failing to determine prevailing rates for wages and fringe\\n\\nbenefits in contravention of the New Mexico Public Works Minimum Wage Act\\n\\n(“Act”), N.M. S TAT . A NN . § 13-4-11(B) (West 2009). Plaintiffs alleged that, as a\\n\\nresult of this failure, from 2009 to 2015 they did not receive the rates to which\\n\\nthey were entitled under the Act.\\n\\n Defendants filed a motion to dismiss, claiming qualified immunity. The\\n\\ndistrict court granted it in part and denied it in part. Specifically, the district\\n\\ncourt granted the motion in its entirety as to Secretary Bussey, and as to\\n\\nPlaintiffs’ procedural due-process claim against Director Dean. However, the\\n\\n\\n 3\\n\\fcourt denied the motion with respect to Director Dean on Plaintiffs’ substantive\\n\\ndue-process claim.\\n\\n Both parties now appeal from the district court’s ruling. In Case No. 17-\\n\\n2072, Director Dean appeals from the court’s denial of qualified immunity as to\\n\\nPlaintiffs’ substantive due-process claim, while in Case No. 17-2079, Plaintiffs\\n\\ncross-appeal the district court’s dismissal of (1) their claims against Secretary\\n\\nBussey, and (2) their claim against Director Dean for violation of their procedural\\n\\ndue-process rights.\\n\\n For the reasons stated below, we dismiss Plaintiffs’ cross-appeal, Case No.\\n\\n17-2079, for lack of jurisdiction, and reverse and remand the district court’s\\n\\ndenial of qualified immunity as to Director Dean on Plaintiffs’ substantive\\n\\ndue-process claim in Case No. 17-2072.\\n\\n I\\n\\n We first present the state statutory context for Plaintiffs’ claims and then\\n\\nreview the relevant facts.\\n\\n A\\n\\n Every contract for public works in New Mexico in excess of\\n\\n$60,000—including those involving construction and demolition—is required to\\n\\nstate the minimum wages and fringe benefits for all tradespeople that work on a\\n\\nparticular project. The director of the Labor Relations Division of DWS (“the\\n\\ndirector”) is tasked with publishing a schedule of minimum wages and fringe\\n\\n 4\\n\\fbenefits for such laborers and mechanics. Generally, Plaintiffs are individuals\\n\\nwho worked on public-works projects in New Mexico during the three years prior\\n\\nto the date of the filing of their lawsuit on August 23, 2016.\\n\\n Prior to 2009, § 13-4-11(B) of the Act provided:\\n\\n [The director] shall conduct a continuing program for the\\n obtaining and compiling of wage-rate information and shall\\n encourage the voluntary submission of wage-rate data by\\n contractors, contractors’ associations, labor organizations,\\n interested persons and public officers. Before making a\\n determination of wage rates for any project, the director shall\\n give due regard to the information thus obtained. Whenever the\\n director deems that the data at hand are insufficient to make a\\n wage determination, the director may have a field survey\\n conducted for the purpose of obtaining sufficient information\\n upon which to make [a] determination of wage rates. Any\\n interested person shall have the right to submit to the director\\n written data, views and arguments why the wage determination\\n should be changed.\\n\\nN.M. S TAT . A NN . § 13-4-11(B) (West 2005). In 2009, § 13-4-11(B) of the Act\\n\\nwas amended to state:\\n\\n The director shall determine prevailing wage rates and prevailing\\n fringe benefit rates for respective classes of laborers and\\n mechanics employed on public works projects at the same wage\\n rates and fringe benefit rates used in collective bargaining\\n agreements between labor organizations and their signatory\\n employers that govern predominantly similar classes or\\n classifications of laborers and mechanics for the locality of the\\n public works project and the crafts involved; provided that:\\n\\n (1) if the prevailing wage rates and prevailing fringe benefit\\n rates cannot reasonably and fairly be determined in a\\n locality because no collective bargaining agreements exist,\\n the director shall determine the prevailing wage rates and\\n prevailing fringe benefit rates for the same or most similar\\n\\n 5\\n\\f class or classification of laborer or mechanic in the nearest\\n and most similar neighboring locality in which collective\\n bargaining agreements exist;\\n\\n (2) the director shall give due regard to information obtained\\n during the director’s determination of the prevailing wage\\n rates and the prevailing fringe benefit rates made pursuant\\n to this subsection;\\n\\n (3) any interested person shall have the right to submit to the\\n director written data, personal opinions and arguments\\n supporting changes to the prevailing wage rate and\\n prevailing fringe benefit rate determination; and\\n\\n (4) prevailing wage rates and prevailing fringe benefit rates\\n determined pursuant to the provisions of this section shall\\n be compiled as official records and kept on file in the\\n director’s office and the records shall be updated in\\n accordance with the applicable rates used in subsequent\\n collective bargaining agreements.\\n\\nN.M. S TAT . A NN . § 13-4-11(B) (West 2009) [hereinafter “the 2009\\n\\nAmendments”].\\n\\n The 2009 Amendments had the primary effect of requiring the director to\\n\\ndetermine the prevailing rates based on the wage rates and fringe-benefit rates\\n\\nused in collective bargaining agreements (“CBAs”), as opposed to the earlier\\n\\nversion of the statute’s mandate to simply collect data for the “purpose of\\n\\nobtaining sufficient information upon which to make [a] determination of wage\\n\\nrates.” N.M. S TAT . A NN . § 13-4-11(B) (West 2005); see also Aplt.’s App.\\n\\nat 151–52 (Mem. Op. & Order, dated Apr. 20, 2017).\\n\\n B\\n\\n\\n 6\\n\\f By April 2011—almost two years after the 2009 Amendments came into\\n\\nforce—the director still had not set prevailing-wage rates according to the CBAs.\\n\\nThe New Mexico Building and Construction Trades Council (“NMBCTC”), “an\\n\\nalliance of craft unions” that represent New Mexico public workers, N.M. Bldg. &\\n\\nConstr. Trades Council v. Dean, 353 P.3d 1212, 1214 (N.M. 2015), filed a\\n\\nPetition for Writ of Mandamus in the New Mexico Supreme Court requesting that\\n\\nthe court compel the director to set prevailing wage and prevailing benefit rates in\\n\\naccordance with relevant CBAs. The New Mexico Supreme Court denied the\\n\\nwrit, but did so on the basis of a representation by the DWS secretary’s (“the\\n\\nsecretary”) counsel that the secretary would set new rates within four or five\\n\\nmonths. See id. (quoting counsel’s statement during oral arguments in 2011: “I\\n\\nwould say [setting the rates] could conceivably be done in four or five months,\\n\\nwhich I don’t think is unreasonable, especially since the secretary has assured me,\\n\\nand I’m assuring the Court, that she’s intent on getting this done. I don’t think it\\n\\nrequires a writ of mandamus to get it done. But, whatever the Court desires, I’m\\n\\nconfident she’ll get it done.”).\\n\\n Despite this assurance from the secretary’s counsel, the secretary did not\\n\\nset new prevailing wage or prevailing benefit rates, even though in 2012 she\\n\\noversaw the promulgation of new regulations and the amendment of others as\\n\\nrequired by the Act. Id. at 1214–15. The NMBCTC challenged these new\\n\\nregulations before the New Mexico Labor and Industrial Commission (“LIC”).\\n\\n 7\\n\\fTypically, a challenge to a new regulation filed with the LIC stays the\\n\\nimplementation of that regulation pending resolution of the challenge, see N.M.\\n\\nC ODE R. § 11.1.2.17(B)(1), but the NMBCTC requested that the LIC waive the\\n\\nautomatic stay if necessary to allow the DWS to proceed with determining new\\n\\nprevailing rates:\\n\\n Pursuant to [N.M. C ODE R. § 11.1.2.17(B)(1)], Appellant waives\\n its right to stay the effectiveness of the new rules through the\\n filing of this appeal as those rules relate to the determination of\\n new prevailing rates to replace the rates currently in effect. . . .\\n Appellant desires the Department to update the prevailing rates\\n in some manner as soon as possible given that the current rates\\n are based on 2009 data and have not been updated for more than\\n two years. If necessary, Appellant requests the Commission to\\n waive the automatic stay as herein described as well.\\n\\nAplt.’s App. at 106 (Ex. E, Notice of Appeal, dated Mar. 27, 2012). The LIC\\n\\ndenied the NMBCTC’s challenge, and the NMBCTC appealed that decision to the\\n\\nstate district court. The LIC did not act to lift the automatic stay at any point\\n\\nduring these proceedings.\\n\\n While the appeal to the state district court was pending, and in light of the\\n\\ndirector’s continued failure to determine updated rates, the NMBCTC filed a\\n\\nsecond Petition for Writ of Mandamus in the New Mexico Supreme Court in\\n\\n2015. The NMBCTC again requested that the New Mexico Supreme Court order\\n\\nthe director to determine the rates as required under the Act. The court this time\\n\\ngranted the writ, stating:\\n\\n\\n\\n\\n 8\\n\\f We hold that under the Act the Director has a mandatory,\\n nondiscretionary duty to set the same prevailing wage and\\n prevailing benefit rates as those negotiated in applicable CBAs\\n and that the Director’s failure to do so violates the Act. We\\n therefore issue a writ of mandamus ordering the Director to\\n comply with the Act and set rates in accordance with CBAs as\\n required under the Act within thirty days of the issuance of this\\n opinion.\\n\\nDean, 353 P.3d at 1214.\\n\\n C\\n\\n Plaintiffs filed the present suit in federal court alleging that they suffered\\n\\nfinancial harm due to Defendants’ failure to determine the prevailing rates in\\n\\naccordance with the 2009 Amendments. Specifically, they allege that the wages\\n\\nand benefits they received, which were based on the pre-2009 Amendment\\n\\ndeterminations, “were less than would have been received had Defendants issued\\n\\nprevailing wage rate and prevailing fringe benefit determinations in accordance\\n\\nwith the . . . Act as amended in 2009.” Aplt.’s App. at 44 (First Am. Compl.,\\n\\ndated Aug. 23, 2016).\\n\\n Pursuant to Federal Rule of Civil Procedure 12(c) (“Rule 12(c)”),\\n\\nDefendants sought judgment on the pleadings with respect to Plaintiff’s amended\\n\\ncomplaint—the operative complaint for our purposes—on qualified-immunity\\n\\ngrounds. The district court granted the motion in its entirety with respect to\\n\\nSecretary Bussey since Plaintiffs had failed to allege the necessary “‘affirmative\\n\\nlink’ demonstrating that Bussey authorized or approved of Dean’s noncompliance\\n\\n\\n 9\\n\\fwith the Act.” Aplt.’s App. at 159 (quoting Dodds v. Richardson, 614 F.3d 1185,\\n\\n1200–01 (10th Cir. 2010)).\\n\\n The court then considered Plaintiffs’ constitutional claims against Director\\n\\nDean. With respect to the procedural due-process claim, the court first\\n\\ndetermined that Plaintiffs had a protected property interest in CBA-level rates\\n\\nunder the Act, giving rise to restrictions on the director’s discretion in\\n\\ndetermining prevailing rates. However, the court noted that “more is\\n\\nrequired—Plaintiffs must show that they were deprived of the [property] interest\\n\\nwithout an adequate process by which they could obtain review of the\\n\\ndeprivation.” Id. at 160 (emphasis added). The court then stated that Plaintiffs\\n\\nfailed to establish that the processes available to challenge the director’s inaction\\n\\nwere constitutionally inadequate, in part because Plaintiffs did “not allege\\n\\nanywhere in the Complaint that they lacked the opportunity to challenge the 2009\\n\\nrates used by the Director.” Id. at 160–61. Accordingly, the court dismissed the\\n\\nprocedural due-process claim against Director Dean.\\n\\n The district court denied Defendants’ motion to dismiss Plaintiffs’\\n\\nsubstantive due-process claim against Director Dean, however. The court\\n\\nreasoned that the failure to set new rates, despite the assurance provided by the\\n\\nsecretary’s counsel during oral arguments before the New Mexico Supreme Court,\\n\\nwas sufficient to show that the director deliberately and arbitrarily deprived\\n\\nPlaintiffs of a protected property right. Furthermore, the court stated the director\\n\\n 10\\n\\fviolated clearly-established law by depriving Plaintiffs of the wages and benefits\\n\\nto which they were entitled under the Act. According to the court, Plaintiffs’\\n\\nright to CBA-based wages and benefits was clearly established by the statute\\n\\nitself given that the plain language of the 2009 Amendments was susceptible to\\n\\nonly one reading—“that it guarantees that [the] minimum wage and benefit rates\\n\\nmust be equivalent to the rates negotiated in CBAs.” Id. at 166.\\n\\n Director Dean appealed, and Plaintiffs cross-appealed the dismissal of their\\n\\nclaims against Secretary Bussey and their procedural due-process claim against\\n\\nDirector Dean.\\n\\n II\\n\\n As in every matter, we must consider whether we have jurisdiction over all\\n\\naspects of this appeal. See Cellport Sys., Inc. v. Peiker Acustic GMBH & Co. KG,\\n\\n762 F.3d 1016, 1021 (10th Cir. 2014) (“It is our obligation always to be certain of\\n\\nour subject matter jurisdiction.” (quoting Russo v. Ballard Med. Prods., 550 F.3d\\n\\n1004, 1009 (10th Cir. 2008))).\\n\\n A\\n\\n With respect to Director Dean’s appeal in Case No. 17-2072, we exercise\\n\\njurisdiction over the district court’s denial of his qualified-immunity defense\\n\\npursuant to 28 U.S.C. § 1291. See Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009)\\n\\n(“[T]his Court has been careful to say that a district court’s order rejecting\\n\\nqualified immunity at the motion-to-dismiss stage of a proceeding is a ‘final\\n\\n 11\\n\\fdecision’ within the meaning of § 1291.”); accord Brown v. Montoya, 662 F.3d\\n\\n1152, 1162 (10th Cir. 2011).\\n\\n B\\n\\n Our jurisdiction to hear Plaintiffs’ cross-appeal in Case No. 17-2079 is less\\n\\nclear. We ultimately conclude that we do not have jurisdiction to hear this\\n\\nappeal.\\n\\n We normally lack jurisdiction over a partial dismissal of a complaint\\n\\nbecause such dismissals do not constitute final, appealable decisions under\\n\\n§ 1291. See McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1104 (10th Cir.\\n\\n2002) (“Because the dismissal . . . adjudicated fewer than all the claims and\\n\\nliabilities of all the parties, it was not a final appealable order . . . .”). However,\\n\\nthe discretionary doctrine of pendent appellate jurisdiction provides an exception\\n\\nto this rule, allowing us to exercise jurisdiction over an “otherwise nonfinal and\\n\\nnonappealable lower court decision that overlaps with an appealable decision.”\\n\\nCox v. Glanz, 800 F.3d 1231, 1255 (10th Cir. 2015) (quoting Moore v. City of\\n\\nWynnewood, 57 F.3d 924, 929 (10th Cir. 1995)).\\n\\n Our exercise of pendent jurisdiction is “only appropriate” in either of two\\n\\nscenarios: (1) “when ‘the otherwise nonappealable decision is inextricably\\n\\nintertwined with the appealable decision,’” or (2) “where review of the\\n\\nnonappealable decision is necessary to ensure meaningful review of the\\n\\nappealable one.” Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1148 (10th\\n\\n 12\\n\\fCir. 2011) (quoting Tarrant Reg’l Water Dist. v. Sevenoaks, 545 F.3d 906, 915\\n\\n(10th Cir. 2008)).\\n\\n Plaintiffs face several obstacles in establishing pendent jurisdiction over\\n\\ntheir cross-appeal. First, the exercise of pendent jurisdiction is generally\\n\\ndisfavored as applied to cases in which primary appellate jurisdiction is based on\\n\\nthe denial of qualified immunity. See Cox, 800 F.3d at 1255; accord Bryson v.\\n\\nGonzales, 534 F.3d 1282, 1285–86 (10th Cir. 2008). After all, the collateral order\\n\\ndoctrine, used to appeal from denials of qualified immunity, “is premised on the\\n\\nability to decide the qualified immunity issue ‘in isolation from the remaining\\n\\nissues of the case,’” making it “hard to reconcile” with pendent jurisdiction.\\n\\nBryson, 534 F.3d at 1285 (quoting Mitchell v. Forsyth, 472 U.S. 511, 529 n.10\\n\\n(1985)).\\n\\n Moreover, Plaintiffs’ briefing does not adequately support their assertion\\n\\nthat we may exercise pendent jurisdiction over their claims. And it is beyond\\n\\nperadventure that it is Plaintiffs’ burden to make such a jurisdictional showing.\\n\\nSee, e.g., Raley v. Hyundai Motor Co., 642 F.3d 1271, 1275 (10th Cir. 2011)\\n\\n(“Where an appellant fails to lead, we have no duty to follow. It is the\\n\\nappellant’s burden, not ours, to conjure up possible theories to invoke our legal\\n\\nauthority to hear her appeal.”); accord E.E.O.C. v. PJ Utah, LLC, 822 F.3d 536,\\n\\n542 n.7 (10th Cir. 2016). Their entire argument on this threshold matter consists\\n\\nof a single conclusory sentence found in, respectively, their opening and reply\\n\\n\\n 13\\n\\fbriefs. See Pls.’ Resp. Br. at 1 (contending that this court “could, and should,\\n\\nassert pendent jurisdiction over [this] cross-appeal”); accord Pls.’ Reply Br. at 1. 1\\n\\nPlaintiffs present no analysis or argument to support either acceptable basis for\\n\\ngranting relief—viz., that their claims on cross-appeal are “inextricably\\n\\nintertwined” with the director’s appeal, or that consideration of their cross-appeal\\n\\nis “necessary for a full assessment of the appealable issue.” Crowe & Dunlevy,\\n\\n640 F.3d at 1148 (quoting Sevenoaks, 545 F.3d at 915). 2 By providing us with\\n\\n\\n 1\\n To avoid confusion in this consolidated appeal and cross-appeal, we\\nrefer to the parties’ briefs as follows:\\n\\n• Defendant/Appellant Jason Dean’s Brief in Chief = Def.’s Opening Br.\\n• Appellees’ Principal and Response Brief = Pls.’ Resp. Br.\\n• Defendant/Appellant Jason Dean’s and Defendant/Cross-Appellee’s\\n Response and Reply Brief = Defs.’ Reply Br.\\n• Appellees’ Reply Br. = Pls.’ Reply Br.\\n 2\\n Rather, Plaintiffs assert without analysis that this court “has\\npend[e]nt jurisdiction” over their claims in light of Primas v. City of Oklahoma\\nCity, 958 F.2d 1506 (10th Cir. 1992), a case involving a number of appeals\\nrelating to a civil-rights action brought by a former city employee against the city\\nand city officials. Pls.’ Reply Br. at 1. There, this court exercised pendent\\njurisdiction over a cross-appeal from an interlocutory appeal of a denial of\\nqualified immunity, concluding that the pendent claim—an appeal from the\\ndistrict court’s determination that the plaintiff did not have a property interest in\\ncontinued employment with the city—involved issues that were “factually and\\nlegally intertwined with the [non-pendent] issues on appeal” that the city officials\\nraised. Primas, 958 F.2d at 1512. To be sure, the cases that the Primas court\\nrelied upon in coming to this conclusion employed the aforementioned pendent-\\njurisdiction framework: they considered whether the appeals were inextricably\\nintertwined or whether reviewing the pendent issue was required to adequately\\nassess the appealable issue. See Micro Motion, Inc. v. Kane Steel Co., 894 F.2d\\n1318, 1320 (Fed. Cir. 1990); Barrett v. United States, 798 F.2d 565, 571 (2d Cir.\\n1986). As such, by relying on Primas, Plaintiffs do point us in the direction of\\n (continued...)\\n\\n 14\\n\\fbare assertions rather than analytical guidance, Plaintiffs effectively ask us to\\n\\n“make arguments for [them] that [they] did not make in [their appellate] briefs,”\\n\\nwhich we “will not” do. 3 Cox, 800 F.3d at 1256 (quoting O’Neal v. Ferguson\\n\\nConstr. Co., 237 F.3d 1248, 1257 n.1 (10th Cir. 2001)).\\n\\n Finally, even were we to overlook Plaintiffs’ failure to argue within the\\n\\npendent-jurisdiction framework, we would conclude that their claims do not\\n\\npresent either of the two scenarios where pendent jurisdiction may be\\n\\nappropriately exercised. With respect to Plaintiffs’ appeal of the district court’s\\n\\ndismissal of all claims against Secretary Bussey, the relevant question on appeal\\n\\nis whether Plaintiffs’ amended complaint adequately identified an “affirmative\\n\\nlink” between Secretary Bussey and the alleged deprivations in this case. Pls.’\\n\\nResp. Br. at 26. It is manifest that this question is not “inextricably intertwined”\\n\\nwith the appealable issue before us, i.e., whether Director Dean is entitled to\\n\\nqualified immunity as to Plaintiffs’ substantive due-process claim. Crowe &\\n\\nDunlevy, 640 F.3d at 1148 (“A pendent claim may be considered ‘inextricably\\n\\n\\n\\n 2\\n (...continued)\\nthe required analysis. But Plaintiffs do not actually apply that analysis to the\\nfacts of this case, and we will not do it for them.\\n 3\\n The director did not address pendent jurisdiction in his briefing.\\nUnlike Plaintiffs’ failure to argue within the pendent-jurisdiction framework,\\nhowever, the director’s “silence on the matter is of no moment,” Cox, 800 F.3d\\nat 1257 n.13, as we have an independent obligation to inquire into our own\\njurisdiction regardless of whether it is challenged, see United States v. Battles,\\n745 F.3d 436, 447 (10th Cir. 2014).\\n\\n 15\\n\\fintertwined’ only if it is ‘coterminous with, or subsumed in, the claim before the\\n\\ncourt on interlocutory appeal—that is, when the appellate resolution of the\\n\\ncollateral appeal necessarily resolves the pendent claim as well.’” (quoting\\n\\nMoore, 57 F.3d at 930)). Nor is appellate review of this question “necessary to\\n\\nensure meaningful review,” id. (quoting Sevenoaks, 545 F.3d at 915), of the issues\\n\\npresented in Director Dean’s qualified-immunity appeal, as evidenced by our\\n\\nanalysis of those issues, infra. See Cox, 800 F.3d at 1257 (“[W]e can\\n\\nundertake—indeed we have undertaken . . .—a meaningful analysis of Sheriff\\n\\nGlanz’s appeal from the denial of qualified immunity (i.e., the non-pendent claim)\\n\\nwithout exercising pendent jurisdiction over the official-capacity claim.”). As\\n\\nwas the case in Cox, in resolving the non-pendent appeal, “we [are] not required\\n\\nto decide the core issues implicated” in this ostensibly pendent matter, leaving us\\n\\nwith “grave doubt that there would be any appropriate basis for our exercise of\\n\\npendent jurisdiction.” Id.\\n\\n Our jurisdiction over Plaintiffs’ appeal from the dismissal of their\\n\\nprocedural due-process claim against Director Dean proves to be a closer call, but\\n\\nour conclusion is the same. It is axiomatic that procedural and substantive\\n\\ndue-process claims require distinct analyses, undermining the notion that this\\n\\npendent claim and the appealable claim are inextricably intertwined or that we\\n\\nmust review the procedural claim in order to adequately address the substantive\\n\\ndue-process claim that is properly before us. See Cleveland Bd. of Educ. v.\\n\\n\\n 16\\n\\fLoudermill, 470 U.S. 532, 541 (1985) (“The point is straightforward: the Due\\n\\nProcess Clause provides that certain substantive rights—life, liberty, and\\n\\nproperty—cannot be deprived except pursuant to constitutionally adequate\\n\\nprocedures. The categories of substance and procedure are distinct. Were the\\n\\nrule otherwise, the Clause would be reduced to a mere tautology.”); Brown, 662\\n\\nF.3d at 1172 (noting that a judicial decision in “a procedural due process case . . .\\n\\ncannot support a clearly established substantive due process right” (citation\\n\\nomitted)); Brown, 662 F.3d at 1172 n.16 (“Insofar as Mr. Brown claims a\\n\\nsubstantive due process violation based on Officer Montoya’s placing him in the\\n\\nsex offender probation unit and directing him to register as a sex offender without\\n\\na hearing, Mr. Brown confuses substantive due process with procedural due\\n\\nprocess.”); United States v. Deters, 143 F.3d 577, 582 (10th Cir. 1998) (“Unlike\\n\\nprocedural due process, substantive due process protects a small number of\\n\\n‘fundamental rights’ from government interference regardless of the procedures\\n\\nused.”); see also Browder v. City of Albuquerque, 787 F.3d 1076, 1078 (10th Cir.\\n\\n2015) (“The Supreme Court has interpreted this language [i.e., of the Due Process\\n\\nClause] as guaranteeing not only certain procedures when a deprivation of an\\n\\nenumerated right takes place (procedural due process), but also as guaranteeing\\n\\ncertain deprivations won’t take place without a sufficient justification\\n\\n(substantive due process).”); [Wesley] Brown v. Cooke, 362 F. App’x 897, 899\\n\\n(10th Cir. 2010) (unpublished) (“[T]he district court did not specifically state in\\n\\n\\n 17\\n\\fits opinion and order whether it considered a procedural due process claim, a\\n\\nsubstantive due process claim, or both. This omission is relevant because the\\n\\ncourt appeared to inject the more demanding ‘fundamental rights and liberties’\\n\\nanalysis from the substantive due process sphere into the ‘liberty interest’\\n\\nanalysis that pertains to the procedural due process inquiry.”).\\n\\n And though there is often some overlap between the two analyses when\\n\\nsubstantive and procedural due-process claims are raised together based on the\\n\\nsame facts, see Becker v. Kroll, 494 F.3d 904, 918 n.8 (10th Cir. 2007) (“Though\\n\\nit is sometimes helpful, as a matter of doctrine, to distinguish between substantive\\n\\nand procedural due process, the two concepts are not mutually exclusive, and\\n\\ntheir protections often overlap.” (quoting Albright v. Oliver, 510 U.S. 266, 301\\n\\n(1994) (Stevens, J. dissenting))), the issues here are quite distinct: Plaintiffs’\\n\\npendent action challenges the district court’s conclusion that there were adequate\\n\\nprocedural protections that Plaintiffs failed to invoke, whereas the non-pendent\\n\\nappeal challenges the court’s finding that the director’s actions shocked the\\n\\nconscience and violated clearly-established federal law. These considerations are\\n\\nnot inextricably intertwined, and review of the pendent action is not required for a\\n\\nmeaningful analysis of the non-pendent appeal. Indeed, the district court’s\\n\\nanalysis and even the parties’ briefing treat the two issues without overlap. See\\n\\nAplt.’s App. at 159–66; cf. Cox, 800 F.3d at 1257.\\n\\n\\n\\n\\n 18\\n\\f Thus, given our general disfavor of pendent jurisdiction in the qualified-\\n\\nimmunity context, see Bryson, 534 F.3d at 1285–86, Plaintiffs’ dereliction of their\\n\\nburden to establish our jurisdiction over their cross-appeal, and our conclusion\\n\\nthat neither of the two accepted rationales for exercising pendent jurisdiction are\\n\\npresent here, we decline to exercise pendent jurisdiction over Plaintiffs’ cross-\\n\\nappeal. We consequently dismiss Plaintiffs’ cross-appeal in Case No. 17-2079 for\\n\\nlack of jurisdiction.\\n\\n\\n\\n III\\n\\n We next turn to the issue properly before us on appeal: whether the district\\n\\ncourt erred in denying Director Dean qualified immunity against Plaintiffs’\\n\\nsubstantive due-process claim. We first lay out the familiar motion-to-dismiss\\n\\nand qualified-immunity standards of review before concluding that the district\\n\\ncourt erred in denying Director Dean’s qualified-immunity defense. More\\n\\nspecifically, we hold that the Plaintiffs have failed to carry their burden of\\n\\nshowing that Director Dean’s actions violated clearly-established federal law.\\n\\n A\\n\\n 1\\n\\n “A motion for judgment on the pleadings under Rule 12(c) is treated as a\\n\\nmotion to dismiss under Rule 12(b)(6).” Atl. Richfield Co. v. Farm Credit Bank\\n\\nof Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000); accord Jacobsen v. Deseret\\n\\n 19\\n\\fBook Co., 287 F.3d 936, 941 n.2 (10th Cir. 2002). Therefore, we review de novo\\n\\nthe district court’s denial of Director Dean’s motion asserting a qualified-\\n\\nimmunity defense. See, e.g., Brokers’ Choice of America Inc. v. NBC Universal,\\n\\nInc., 861 F.3d 1081, 1102 (10th Cir. 2017) (noting that “we use the same de novo\\n\\nstandard of review” in reviewing a district court’s ruling on Rule 12(c) and Rule\\n\\n12)(b)(6)); Brown, 662 F.3d at 1162 (“We review the district court’s denial of a\\n\\nmotion to dismiss based on qualified immunity de novo.” (quoting Peterson v.\\n\\nJensen, 371 F.3d 1199, 1202 (10th Cir. 2004))); Ramirez v. Dep’t of Corrs.,\\n\\nColo., 222 F.3d 1238, 1240 (10th Cir. 2000) (reviewing de novo a district court’s\\n\\ndenial of a Rule 12(c) motion based on qualified immunity), abrogated on other\\n\\ngrounds by Crawford-El v. Britton, 523 U.S. 574 (1988), as recognized by\\n\\nCurrier v. Doran, 242 F.3d 905, 912, 916 (10th Cir. 2001).\\n\\n “To survive a motion to dismiss, a complaint must contain sufficient factual\\n\\nmatter, accepted as true, to state a claim to relief that is plausible on its face.”\\n\\nEmps.’ Ret. Sys. of R.I. v. Williams Cos., Inc., 889 F.3d 1153, 1161 (10th Cir.\\n\\n2018) (quoting Iqbal, 556 U.S. at 678). “A claim has facial plausibility when the\\n\\nplaintiff pleads factual content that allows the court to draw the reasonable\\n\\ninference that the defendant is liable for the misconduct alleged.” Free Speech v.\\n\\nFed. Election Comm’n, 720 F.3d 788, 792 (10th Cir. 2013) (quoting Iqbal, 556\\n\\nU.S. at 678). In making this assessment, we “accept as true ‘all well-pleaded\\n\\nfactual allegations in a complaint and view these allegations in the light most\\n\\n\\n 20\\n\\ffavorable to the plaintiff.’” Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 (10th\\n\\nCir. 2013) (quoting Kerber v. Qwest Grp. Life Ins. Plan, 647 F.3d 950, 959 (10th\\n\\nCir. 2011)).\\n\\n 2\\n\\n The qualified-immunity doctrine protects public employees from both\\n\\nliability and “from the burdens of litigation” arising from their exercise of\\n\\ndiscretion. Allstate Sweeping, LLC v. Black, 706 F.3d 1261, 1266 (10th Cir.\\n\\n2013); see Elder v. Holloway, 510 U.S. 510, 514 (1994) (“The central purpose of\\n\\naffording public officials qualified immunity from suit is to protect them ‘from\\n\\nundue interference with their duties and from potentially disabling threats of\\n\\nliability.’” (quoting Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982))). When a\\n\\ndefendant raises the qualified-immunity defense, “the onus is on the plaintiff to\\n\\ndemonstrate ‘(1) that the official violated a statutory or constitutional right, and\\n\\n(2) that the right was “clearly established” at the time of the challenged\\n\\nconduct.’” Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015) (emphasis\\n\\nadded) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)); accord Cillo v.\\n\\nCity of Greenwood Village, 739 F.3d 451, 460 (10th Cir. 2013).\\n\\n We may address the two prongs of the qualified-immunity analysis in either\\n\\norder: “[I]f the plaintiff fails to establish either prong of the two-pronged\\n\\nqualified-immunity standard, the defendant prevails on the defense.” A.M. v.\\n\\nHolmes, 830 F.3d 1123, 1134–35 (10th Cir. 2016), cert. denied, 137 S. Ct. 2151\\n\\n\\n 21\\n\\f(2017). Here, our analysis focuses on the clearly-established-law prong, and we\\n\\nconclude that Plaintiffs have failed to demonstrate that Director Dean violated\\n\\ntheir clearly-established rights; consequently, Director Dean prevails on his\\n\\nqualified-immunity defense. Because we need not do so, we do not reach the first\\n\\nprong of the qualified-immunity standard—that is, whether Director Dean’s\\n\\nconduct in failing to set prevailing rates actually violated Plaintiffs’ substantive\\n\\ndue-process rights.\\n\\n “A clearly established right is one that is ‘sufficiently clear that every\\n\\nreasonable official would have understood that what he is doing violates that\\n\\nright.’” Mullenix v. Luna, --- U.S. ----, 136 S. Ct. 305, 308 (2015) (per curiam)\\n\\n(quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). Ordinarily, “[a]\\n\\nplaintiff may satisfy this [clearly-established-law] standard by identifying an\\n\\non-point Supreme Court or published Tenth Circuit decision [that establishes the\\n\\nunlawfulness of the defendant’s conduct]; alternatively, ‘the clearly established\\n\\nweight of authority from other courts must have found the law to be as the\\n\\nplaintiff maintains.’” Quinn, 780 F.3d at 1005 (quoting Weise v. Casper, 593\\n\\nF.3d 1163, 1167 (10th Cir. 2010)); accord A.M., 830 F.3d at 1135; Cox, 800 F.3d\\n\\nat 1247. As the Supreme Court has instructed, this “do[es] not require a case\\n\\ndirectly on point, but existing precedent must have placed the statutory or\\n\\nconstitutional question [regarding the illegality of the defendant’s conduct]\\n\\nbeyond debate.” al-Kidd, 563 U.S. at 741; see Estate of B.I.C. v. Gillen, 761 F.3d\\n\\n\\n 22\\n\\f1099, 1106 (10th Cir. 2014) (“Although it is not necessary for the facts in the\\n\\ncited authority to correspond exactly to the situation the plaintiff complains of,\\n\\nthe ‘plaintiff must demonstrate a substantial correspondence between the conduct\\n\\nin question and prior law allegedly establishing that the defendant’s actions were\\n\\nclearly prohibited.’” (quoting Trotter v. Regents of Univ. of N.M., 219 F.3d 1179,\\n\\n1184 (10th Cir. 2000))). In this vein, the Court has “repeatedly told [lower]\\n\\ncourts . . . not to define clearly established law at a high level of generality.” al-\\n\\nKidd, 563 U.S. at 742 (citation omitted); accord Mullenix, 136 S. Ct. at 308.\\n\\n“[D]oing so avoids the crucial question [of] whether the official acted reasonably\\n\\nin the particular circumstances that he or she faced.” Plumhoff v. Rickard, 572\\n\\nU.S. 765, 779 (2014) (emphasis added); accord Estate of B.I.C., 761 F.3d at 1106.\\n\\nIn this connection, it bears underscoring that the federal right allegedly violated\\n\\nmust have been “clearly established at the time of the defendant’s unlawful\\n\\nconduct.” Cillo, 739 F.3d at 460.\\n\\n In furthering the protective aims of qualified immunity, it is important that\\n\\ncourts be especially sensitive to the need to ensure “a substantial correspondence\\n\\nbetween the conduct in question and prior law allegedly establishing that the\\n\\ndefendant’s actions were clearly prohibited,” Estate of B.I.C., 761 F.3d at 1106\\n\\n(quoting Trotter, 219 F.3d at 1184)), where the legal standards of liability under\\n\\nthe prior law are broad and general or depend on a balancing of discrete and\\n\\nsometimes opposing interests. See Mullenix, 136 S. Ct. at 308 (holding that\\n\\n\\n 23\\n\\f“specificity [in defining clearly-established law] is especially important in the\\n\\nFourth Amendment context” because “[i]t is sometimes difficult for an officer to\\n\\ndetermine how the relevant legal doctrine . . . will apply to the factual situation\\n\\nthe officer confronts” (second alteration in original) (quoting Saucier v. Katz, 533\\n\\nU.S. 194, 205 (2001), overruled in part on other grounds by Pearson v. Callahan,\\n\\n555 U.S. 223, 236 (2009), as recognized by Hobbs ex rel. Hobbs v. Zenderman,\\n\\n579 F.3d 1171, 1183 (10th Cir. 2009))); Aldaba v. Pickens, 844 F.3d 870, 877\\n\\n(10th Cir. 2016) (“In the Fourth Amendment context, ‘the result depends very\\n\\nmuch on the facts of each case,’ and the precedents must ‘squarely govern’ the\\n\\npresent case [to constitute clearly-established law].” (quoting Mullenix, 136 S. Ct.\\n\\nat 309)); Medina v. City & County of Denver, 960 F.2d 1493, 1498 (10th Cir.\\n\\n1992) (addressing a substantive due-process claim and stating that “allegations of\\n\\nconstitutional violations that require courts to balance competing interests may\\n\\nmake it more difficult to find the law ‘clearly established’ when assessing claims\\n\\nof qualified immunity”), overruled in part on other grounds by County of\\n\\nSacramento v. Lewis, 523 U.S. 833 (1998), as recognized by Morris v. Noe, 672\\n\\nF.3d 1185, 1197 n.5 (10th Cir. 2012); Melton v. City of Oklahoma City, 879 F.2d\\n\\n706, 729 (10th Cir. 1989) (addressing a retaliatory-discharge claim under the First\\n\\nAmendment, and noting that, “because a rule of law determined by a balancing of\\n\\ninterests is inevitably difficult to clearly anticipate, it follows that where . . .\\n\\nbalancing is required, the law is less likely to be well established than in other\\n\\n\\n 24\\n\\fcases”), modified on other grounds on reh’g, 928 F.2d 920 (10th Cir. 1991) (en\\n\\nbanc). The legal standard governing liability under the rubric of substantive due\\n\\nprocess evinces these attributes.\\n\\n Specifically, the standard for liability for a violation of a person’s\\n\\nsubstantive due-process rights is broad and general. See Washington v.\\n\\nGlucksberg, 521 U.S. 702, 722 (1997) (stating that the rights protected under\\n\\nsubstantive due process have “never [been] fully clarified, to be sure, and perhaps\\n\\n[are] not capable of being fully clarified”); Collins v. City of Harker Heights, 503\\n\\nU.S. 115, 125 (1992) (describing substantive due process as an “unchartered area”\\n\\nin which the “guideposts for responsible decisionmaking . . . are scarce and\\n\\nopen-ended”). Furthermore and relatedly, consideration of whether a person’s\\n\\nsubstantive due-process rights have been infringed “requires a ‘balancing [of the\\n\\nperson’s constitutionally protected] interests against the relevant state interests.’”\\n\\nJ.B. v. Washington Cty., 127 F.3d 919, 927 (10th Cir. 1997) (quoting Youngberg\\n\\nv. Romeo, 457 U.S. 307, 321 (1982)).\\n\\n Thus, in our assessment here of whether Director Dean’s conduct violated\\n\\nPlaintiffs’ clearly-established substantive due-process rights, we must be\\n\\nespecially sensitive to whether existing relevant precedents at the time he acted\\n\\n“squarely govern[ed],” Mullenix, 136 S. Ct. at 310, “the particular circumstances\\n\\nthat he . . . faced,” Plumhoff, 572 U.S. at 779 (emphasis added), and demonstrated\\n\\n\\n\\n\\n 25\\n\\fthat the “violative nature of the particular conduct is clearly established.”\\n\\nAldaba, 844 F.3d at 877 (quoting Mullenix, 136 S. Ct. at 308).\\n\\n\\n\\n B\\n\\n Director Dean challenges the district court’s conclusion as to both prongs\\n\\nof the qualified-immunity analysis, i.e., that he violated Plaintiffs’ substantive\\n\\ndue-process rights and that he did so in violation of clearly-established federal\\n\\nlaw. We agree with Director Dean that he did not violate clearly-established\\n\\nfederal law and thus conclude that he is entitled to the defense of qualified\\n\\nimmunity. However, we first address Plaintiffs’ argument that the\\n\\nqualified-immunity defense is unavailable because Director Dean’s obligation to\\n\\nset CBA-based rates was a ministerial duty, rather than a discretionary function of\\n\\nhis position.\\n\\n 1\\n\\n Qualified immunity only shields an official in the exercise of his or her\\n\\ndiscretion. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009)\\n\\n(“Under the qualified immunity doctrine, ‘government officials performing\\n\\ndiscretionary functions, generally are shielded from liability for civil damages\\n\\ninsofar as their conduct does not violate clearly established [federal] statutory or\\n\\nconstitutional rights of which a reasonable person would have known.’”\\n\\n(alteration in original) (emphasis added) (quoting Harlow, 457 U.S. at 818)).\\n\\n\\n 26\\n\\fPlaintiffs contend that Director Dean’s duty to issue new prevailing rates for\\n\\nwages and fringe benefits pursuant to the Act was nondiscretionary, rendering\\n\\nqualified immunity inapplicable here. For support, they rely primarily on the\\n\\nNew Mexico Supreme Court’s statement in Dean that “under the Act, specifically\\n\\nSection 13-4-11, the Director has a mandatory, nondiscretionary duty to set\\n\\nprevailing wage and prevailing benefit rates the same as those negotiated in\\n\\napplicable CBAs.” 353 P.3d at 1218. Director Dean responds that his duty was\\n\\nin fact discretionary because it involved interpreting the Act.\\n\\n We agree with Director Dean that his duty to publish prevailing rates\\n\\ninvolved substantial discretion as that term applies in the federal qualified-\\n\\nimmunity context, and that he therefore may avail himself of the qualified-\\n\\nimmunity defense. Director Dean’s implementation of the Act required him to\\n\\ninterpret the language of a state statute. And although the New Mexico Supreme\\n\\nCourt eventually held that Defendants’ interpretation was contrary to the 2009\\n\\nAmendments, see Dean, 353 P.3d at 1218, interpretation of state law is exactly\\n\\nthe kind of discretionary function for which the qualified-immunity defense\\n\\nagainst federal liability applies.\\n\\n The Supreme Court made this clear in Davis v. Scherer, 468 U.S. 183\\n\\n(1984), where it reversed the district court’s denial of qualified immunity based\\n\\nupon a finding that the defendants had violated a clear mandate of state law in\\n\\nterminating plaintiff’s employment without following certain pretermination\\n\\n\\n 27\\n\\fprocedures. Id. at 193. The Court proceeded to craft a narrow scope for the\\n\\n“ministerial duty” exception to qualified immunity. Id. at 196 n.14. The Court\\n\\nexplained that a law that “fails to specify the precise action that the official must\\n\\ntake in each instance creates only discretionary authority; and that authority\\n\\nremains discretionary however egregiously it is abused.” Id. Thus, the Davis\\n\\nCourt reasoned, even assuming that the defendants had “ignored a clear legal\\n\\ncommand” to follow various pre-termination procedures before ending the\\n\\nplaintiff’s employment, this duty was discretionary given that the state regulation\\n\\nin question left to them to interpret various terms contained in those\\n\\npretermination procedures, including “a complete investigation” and a “thorough\\n\\nstudy of all information.” Id. These indefinite terms provided the defendants\\n\\nwith a “substantial measure of discretion” and thus allowed them to exercise\\n\\nauthority that is discretionary, rather than ministerial. Id.\\n\\n Similarly, the Act left to Director Dean a substantial measure of discretion\\n\\nin interpreting its terms. The Act requires the director to establish prevailing\\n\\nrates “at the same wage rates and fringe benefit rates used in collective bargaining\\n\\nagreements,” but leaves to the director substantial discretion to determine the\\n\\nmethod of collecting and aggregating data, and, perhaps most importantly for our\\n\\npresent inquiry, the timetable for doing so. N.M. S TAT . § 13-4-11(B) (West\\n\\n2009).\\n\\n\\n\\n\\n 28\\n\\f Notably, Plaintiffs fail to cite any caselaw addressing federal qualified\\n\\nimmunity that would support a contrary result. And though the New Mexico\\n\\nSupreme Court held that “the Director has a mandatory, nondiscretionary duty to\\n\\nset the same prevailing wage and prevailing benefit rates as those negotiated in\\n\\napplicable CBAs,” Dean, 353 P.3d at 1214, the analytical context of the state\\n\\ncourt’s description of Director Dean’s duty as “mandatory” and\\n\\n“nondiscretionary” is important. The court’s description relates to the availability\\n\\nof mandamus relief under New Mexico law. Id. at 1214. While we ordinarily\\n\\ndefer to a state court’s interpretation of a state statute, see United States v.\\n\\nDeGasso, 369 F.3d 1139, 1145 (10th Cir. 2004) (“It is axiomatic that state courts\\n\\nare the final arbiters of state law.”), the issue before us concerns not whether\\n\\nmandamus is available under New Mexico law, but whether qualified immunity\\n\\nbars liability under federal law. We therefore apply a federal standard to\\n\\ndetermine whether Director Dean’s obligations were sufficiently discretionary to\\n\\nwarrant the protections of the qualified-immunity defense under federal law, and\\n\\nwe conclude that the United States Supreme Court’s language in Davis compels\\n\\nour conclusion that such protections are available here.\\n\\n Director Dean’s interpretation and implementation of the Act were\\n\\ntherefore matters within his discretion, and he is protected from liability under\\n\\n§ 1983 unless his conduct violated clearly-established federal law.\\n\\n 2\\n\\n\\n 29\\n\\f Turning finally to the issue of whether Director Dean is entitled to qualified\\n\\nimmunity under the circumstances giving rise to this § 1983 suit, we conclude\\n\\nthat his actions did not violate clearly-established federal law. Specifically, we\\n\\nconclude that Plaintiffs have failed to meet the second prong of the qualified-\\n\\nimmunity analysis—i.e., Plaintiffs have failed to identify clearly-established law\\n\\nthat would have put Director Dean on notice that his conduct would give rise to\\n\\nliability under federal law—and thus we need not reach the first prong of the\\n\\nqualified-immunity analysis, i.e., whether Director Dean’s conduct in fact\\n\\nviolated Plaintiffs’ rights to substantive due process. See A.M., 830 F.3d\\n\\nat 1134–35.\\n\\n The district court denied qualified immunity based upon a finding that “the\\n\\nAct clearly and unambiguously required the Director to set prevailing wage rates\\n\\naccording to CBAs.” Aplt.’s App. at 165. Plaintiffs rely on this reasoning and\\n\\nurge us to affirm.\\n\\n But the district court’s reasoning is flawed because it equates a violation of\\n\\na clear obligation under state law 4 with a violation of clearly-established federal\\n\\n 4\\n Director Dean argues, in his opening brief, that he followed a\\n“normal process” by refraining from implementing the Act during the pendency of\\nthe challenge before the LIC. Def.’s Opening Br. at 27. In a single sentence, he\\nargues that “state law was ambiguous at the time,” given that an appeal to the LIC\\ntypically activates an automatic stay, N.M. C ODE R. § 11.1.2.17(B)(1), and the\\nLIC never acted to lift the stay despite the NMBCTC’s request to waive the stay.\\nSee Def.’s Opening Br. at 27–28.\\n\\n (continued...)\\n\\n 30\\n\\flaw. Whether Director Dean violated clearly-established state law in failing to set\\n\\nCBA-based rates, however, is an entirely separate question from whether that\\n\\nfailure violated clearly-established federal law. And even if Director Dean had\\n\\nnotice that his reading of the Act was incorrect as a matter of state law, this\\n\\nwould not necessarily deprive him of qualified immunity from liability under\\n\\nfederal law. See Davis, 468 U.S. at 194 (“Officials sued for constitutional\\n\\nviolations do not lose their qualified immunity merely because their conduct\\n\\nviolates some statutory or administrative provision [of state law].”); Stanley v.\\n\\nGallegos, 852 F.3d 1210, 1224 (10th Cir. 2017) (Holmes, J., concurring in the\\n\\njudgment) (noting that Davis forecloses the argument that “if an official acts\\n\\noutside of his scope of authority, as defined by clearly established state law, he\\n\\n‘forfeits’ his right to have a federal court in a § 1983 action consider the merits of\\n\\nhis defense that his actions did not violate clearly established federal law”); cf.\\n\\n\\n\\n 4\\n (...continued)\\n However, during oral arguments before this court, Director Dean’s counsel\\nconceded that there was no confusion regarding the director’s state-law\\nobligations—irrespective of whether a stay was in effect—once the secretary’s\\ncounsel represented to the New Mexico Supreme Court that DWS would update\\nthe prevailing rates. Thus, we deem any argument that the director’s obligation\\nunder state law was ambiguous as either waived due to inadequate briefing on\\nappeal or abandoned by counsel’s affirmative admission during oral argument, see\\nUnited States v. Cooper, 654 F.3d 1104, 1128 (10th Cir. 2011); United States v.\\nCarrasco-Salazar, 494 F.3d 1270, 1272–73 (10th Cir. 2007), at least insofar as\\nthe argument bears upon the clearly-established-law prong of the qualified-\\nimmunity analysis—viz., insofar as any ambiguity might have supported the idea\\nthat a reasonable state official in Director Dean’s position would not have been on\\nfair notice of a violation of federal law.\\n\\n 31\\n\\fDahn v. Amedei, 867 F.3d 1178, 1189 (10th Cir. 2017) (reversing denial of\\n\\nqualified immunity upon finding no violation of clearly-established federal law,\\n\\nbut noting that Defendants’ conduct could “very well expose them to tort\\n\\nliability” under state law).\\n\\n Neither the district court nor Plaintiffs have identified any case from the\\n\\nSupreme Court or this court finding a defendant liable under federal law in\\n\\nfactually similar circumstances, i.e., where a public official in the same or similar\\n\\nposition as Director Dean was held liable under federal law for failing to set rates\\n\\nfor wages and fringe benefits (or for similar items) in apparent contravention of\\n\\nstate law that required him to do so. Given that Plaintiffs bear the burden of\\n\\npresenting such a case to overcome qualified immunity, see Gutierrez v. Cobos,\\n\\n841 F.3d 895, 900 (10th Cir. 2016), this failure proves fatal to their position.\\n\\n Instead, Plaintiffs cite two factually inapposite cases in arguing that the Act\\n\\ncreated a clearly-established right for purposes of qualified immunity by virtue of\\n\\nits “clear and unambiguous” description of Director Dean’s duties. These cases,\\n\\nhowever, do not speak to the legal issue present here and are without controlling\\n\\nforce in this circuit.\\n\\n The first is Gardner v. Williams, 56 F. App’x 700 (6th Cir. 2003)\\n\\n(unpublished). Plaintiffs’ reliance on Gardner is patently misguided. To begin, it\\n\\nis notable that Gardner is an out-of-circuit unpublished decision; even assuming\\n\\nthat such a decision is entitled to any consideration at all in the clearly-\\n\\n\\n 32\\n\\festablished-law analysis, that consideration would be minimal. See Morris, 672\\n\\nF.3d at 1197 n.5 (observing that “a single unpublished district court opinion is not\\n\\nsufficient to render the law clearly established,” but, in discussing “unpublished\\n\\ncases from this court,” noting that “we have never held that a district court must\\n\\nignore unpublished opinions in deciding whether the law is clearly established”);\\n\\nMecham v. Frazier, 500 F.3d 1200, 1206 (10th Cir. 2007) (noting, in the context\\n\\nof discussing the import of an unpublished Tenth Circuit decision, that “[a]n\\n\\nunpublished opinion, . . . even if the facts were closer, provides little support for\\n\\nthe notion that the law is clearly established”); cf. Grissom v. Roberts, 902 F.3d\\n\\n1162, 1168 (10th Cir. 2018) (acknowledging the “little support” holding of\\n\\nMecham but noting that, on the other hand, “an unpublished opinion can be quite\\n\\nrelevant in showing that the law was not clearly established,” specifically when\\n\\n“the same alleged victim and same defendant conduct are involved”).\\n\\n Furthermore, even focusing on the merits, Gardner lends Plaintiffs little\\n\\nsuccor. There, a panel of the Sixth Circuit concluded that a state trooper had\\n\\nviolated an individual’s clearly-established Fourth Amendment rights by arresting\\n\\nhim without probable cause given that it was “unambiguous and not reasonably\\n\\nopen to an alternative interpretation” that the state statutes used to justify the\\n\\narrest were inapplicable. 56 F. App’x at 704. First of all, Gardner is patently\\n\\ndistinguishable because there it was undisputed that effecting an arrest without\\n\\nprobable cause would constitute a violation of Fourth Amendment Rights. In\\n\\n\\n 33\\n\\fcontrast, here it is disputed that Director Dean’s failure to determine prevailing\\n\\nrates constituted any violation of federal rights. More fundamentally, Gardner\\n\\nsimply highlights in unremarkable fashion the “inevitable importance” in certain\\n\\nlegal settings of state law to our assessment of whether the plaintiff may “show a\\n\\nviolation of his federal rights.” Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th\\n\\nCir. 2012). “The basic federal constitutional right of freedom from arrest without\\n\\nprobable cause is undoubtedly clearly established by federal cases. But the\\n\\nprecise scope of that right uniquely depends on the contours of a state’s\\n\\nsubstantive criminal law” where, as in Gardner, the issue is whether the law\\n\\nenforcement officer “had probable cause based on a state criminal statute.” Id.\\n\\nat 1300–01 (citation omitted) (citing Keylon v. City of Albuquerque, 535 F.3d\\n\\n1210, 1216 (10th Cir. 2008)). “[H]owever, we underscore that—even when it is\\n\\nessential to discern the content of state law—the rights being vindicated through\\n\\n§ 1983 are federal.” A.M., 830 F.3d at 1141. Gardner does not purport to alter\\n\\nthis federal-law focus of § 1983 liability. Nor does Gardner suggest that state-\\n\\nlaw violations play a similarly significant role in the context of substantive due-\\n\\nprocess violations, much less clearly establish that Director Dean’s alleged\\n\\nviolation of clearly-established state law in failing to set CBA-based rates would\\n\\neffect a violation of substantive due process. Thus, Plaintiffs’ reliance on\\n\\nGardner is unavailing.\\n\\n\\n\\n\\n 34\\n\\f The second case Plaintiffs cite is Brooks v. George County, 84 F.3d 157\\n\\n(5th Cir. 1996). Brooks, however, is inapposite. There, the Fifth Circuit denied\\n\\nqualified immunity to a sheriff that had failed to meet his obligation under state\\n\\nlaw to keep records that were to be used to pay pretrial detainees. Id. at 164–65.\\n\\nBut the Fifth Circuit’s decision to deny qualified immunity there rested entirely\\n\\non its determination, based on a reading of the state statute in question, that the\\n\\nsheriff’s duty was non-discretionary. Id. However, as stated supra, we have\\n\\ndetermined that Director Dean’s duties under the 2009 Amendments were in fact\\n\\ndiscretionary for purposes of qualified immunity under federal law. Therefore,\\n\\nBrooks does not help Plaintiffs either.\\n\\n Because Plaintiffs have offered no authority clearly establishing that\\n\\nDirector Dean violated their substantive due-process rights under federal law by\\n\\nfailing to discharge his state-law obligation under the Act to publish CBA-based\\n\\nrates for wages and fringe benefits, we conclude that Director Dean is entitled to\\n\\nqualified immunity. 5\\n\\n IV\\n\\n\\n\\n 5\\n Since our inquiry here solely concerned whether Director Dean\\nviolated clearly-established federal law for purposes of determining whether he is\\nentitled to qualified immunity from liability under federal law, see Davis, 468\\nU.S. at 194, we have no occasion to question the New Mexico Supreme Court’s\\nreading of the 2009 Amendments, or to decide whether Director Dean’s conduct\\nin fact violated state law. Our opinion thus does not preclude Plaintiffs from\\nseeking any available relief for Defendants’ purported violations of New Mexico\\nlaw in state court.\\n\\n 35\\n\\f For the reasons discussed above, we DISMISS Plaintiffs’ appeal of the\\n\\ngrant of qualified immunity in Case No. 17-2079 for lack of jurisdiction, and we\\n\\nREVERSE the district court’s judgment in Case No. 17-2072 and REMAND the\\n\\ncase and instruct the court to grant Director Dean qualified immunity with respect\\n\\nto Plaintiffs’ substantive due-process claim.\\n\\n\\n\\n\\n 36\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":388,"cells":{"id":{"kind":"number","value":4584820,"string":"4,584,820"},"name":{"kind":"string","value":"MTI, INC., Formerly Midwest Towers, Inc., Plaintiff - Appellant v. EMPLOYERS INSURANCE COMPANY OF WAUSAU, Defendant - Appellee."},"name_abbreviation":{"kind":"string","value":"MTI, Inc. v. Emp'rs Ins. Co. of Wausau"},"decision_date":{"kind":"string","value":"2019-01-25"},"docket_number":{"kind":"string","value":"17-6206"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Lucero, McKay, Matheson\", \"parties\": \"\", \"opinions\": [{\"author\": \"LUCERO, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS January 25, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\nMTI, INC., formerly Midwest Towers,\\nInc.,\\n\\n Plaintiff - Appellant\\n\\nv. No. 17-6206\\n\\nEMPLOYERS INSURANCE COMPANY\\nOF WAUSAU,\\n\\n Defendant - Appellee.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the Western District of Oklahoma\\n (D.C. No. 5:15-CV-00716-R)\\n _________________________________\\n\\nF. Thomas Cordell, Frailey, Chaffin, Cordell, Perryman & Sterkel, LLP, Chickasha,\\nOklahoma, (Mort G. Welch, Welch & Smith, P.C., Oklahoma City, Oklahoma, with him\\non the briefs), for Plaintiff-Appellant.\\n\\nJeffrey Gerish, Plunkett Cooney, P.C., Bloomfield Hills, Michigan, (Joseph R. Farris and\\nEmily D. Pearson, Franden, Farris, Quillin, Goodnight & Roberts, Tulsa, Oklahoma, with\\nhim on the briefs), for Defendant-Appellee.\\n\\n _________________________________\\n\\nBefore LUCERO, McKAY, and MATHESON, Circuit Judges.\\n _________________________________\\n\\nLUCERO, Circuit Judge.\\n _________________________________\\n\\f In this appeal, we consider two exclusions from a commercial general liability\\n\\npolicy that bar coverage for damage to “that particular part” of the property on which\\n\\nan insured is performing operations, or which must be repaired or replaced due to the\\n\\ninsured’s incorrect work. Under Oklahoma law, our analysis proceeds in two steps.\\n\\nFirst, we must determine as a matter of law whether the exclusions are ambiguous.\\n\\nKerr-McGee Corp. v. Admiral Ins. Co., 905 P.2d 760, 762 (Okla. 1995). We\\n\\nconclude the phrase “that particular part” is susceptible to more than one reasonable\\n\\nconstruction: it could refer to the distinct component upon which an insured works\\n\\nor to all parts ultimately impacted by that work.\\n\\n Because the language at issue is ambiguous we proceed to the second step, in\\n\\nwhich “the contract will be interpreted consistent with the mutual intent of the\\n\\nparties, with the ambiguity resolved most favorably to the insured and against the\\n\\ninsurance carrier.” Id. We thus adopt the narrower interpretation of the phrase “that\\n\\nparticular part,” under which the exclusion extends only to the distinct components\\n\\nupon which work was performed. Exercising jurisdiction under 28 U.S.C. § 1291,\\n\\nwe reverse.\\n\\n I\\n\\n Western Farmers Electrical Cooperative (“WFEC”) owns cooling towers in\\n\\nOklahoma, which were serviced by MTI, Inc. (“MTI”), the appellant in this case.\\n\\nEmployers Insurance Company of Wausau (“Wausau”), the appellee, provided a\\n\\ncommercial general liability policy (the “Policy”) to MTI at all times material to this\\n\\nappeal.\\n\\n 2\\n\\f A 2011 inspection by MTI revealed that the anchor bolts in Cooling Tower 1\\n\\nwere corroded. MTI and WFEC agreed to a new repair contract, which included the\\n\\nfollowing work:\\n\\n Unit 1 Tower Anchors\\n Throughout the entire basin, install new 304 SS anchor castings.\\n Included will be 304SS anchor bolts and Hilti anchor adhesive.\\n\\n Unit 1 Louvers\\n On four (4) cells, remove existing louvers and install a (3) row louver\\n system. New louvers will consist of 12oz. 4.2” corrugated FRP panels\\n supported on 2”x4” Douglas Fir supports. Included will be new\\n polypropylene support arms. Also included will be all necessary 304\\n stainless steel hardware.\\n\\nRepairs on a separate cooling tower were also listed in the Tower 1 contract. The\\n\\ncooling towers at issue are mostly wood structures, approximately 50 feet wide, 150\\n\\nfeet long, and 70 feet tall. They are set in sump pits approximately 12 feet deep. The\\n\\ntowers are stabilized with lateral wooden bracing beams, which are connected to the\\n\\nconcrete foundation of the sump pit with anchor bolts.\\n\\n On May 23, 2011, MTI employees removed all 64 corroded anchor bolts in\\n\\nTower 1. Because the adhesive applicator had not yet arrived, MTI did not\\n\\nimmediately install new anchor bolts. Further, MTI did not provide any temporary\\n\\nsupport to ensure the stability of the tower. On the night of May 24, extremely high\\n\\nwinds struck the tower, causing it to lean and several structural components to break.\\n\\nDue to the extent of the structural damage, removal and replacement of the tower was\\n\\ndetermined to be the only viable option. Although at least some internal operational\\n\\n\\n\\n\\n 3\\n\\fequipment was not damaged, this equipment was deemed too dangerous to access and\\n\\nrecover.\\n\\n WFEC demanded MTI pay the cost of removing and replacing the entire\\n\\ntower, which totaled over $1.4 million. MTI filed a claim for coverage with its\\n\\ninsurer, Wausau, under the Policy. After Wausau declined to provide coverage, MTI\\n\\ndirectly negotiated a settlement of $350,000 with WFEC. The balance of the tower\\n\\nreplacement cost was borne by WFEC’s insurer. MTI then sought recoupment of its\\n\\nsettlement amount from Wausau.\\n\\n The parties agree that the Policy was active at the time of the incident.\\n\\nWausau denied coverage under two exclusions. Those provisions bar coverage for:\\n\\n j. Damage To Property\\n\\n “Property damage” to:\\n ....\\n\\n (5) That particular part of real property on which you or any contractors\\n or subcontractors working directly or indirectly on your behalf are\\n performing operations, if the “property damage” arises out of those\\n operations; or\\n\\n (6) That particular part of any property that must be restored, repaired or\\n replaced because “your work” was incorrectly performed on it.\\n\\n MTI eventually filed suit against Wausau in Oklahoma state court for breach\\n\\nof contract. Wausau removed the case to federal court. On Wausau’s motion for\\n\\nsummary judgment, the district court held that the events described fell within the\\n\\nscope of both exclusion j(5) and j(6), and entered judgment in favor of Wausau. MTI\\n\\ntimely appealed.\\n\\n\\n 4\\n\\f II\\n\\n We review a district court’s grant of summary judgment de novo. Greystone\\n\\nConstr., Inc. v. Nat’l Fire & Marine Ins. Co., 661 F.3d 1272, 1277 (10th Cir. 2011),\\n\\nas amended on reh’g in part (Dec. 23, 2011). Summary judgment is appropriate only\\n\\nif there is no genuine issue of material fact and the moving party is entitled to\\n\\njudgment as a matter of law. Id. We also review a district court’s interpretation of\\n\\nstate contract law de novo. City of Wichita v. Sw. Bell Tel. Co., 24 F.3d 1282, 1286\\n\\n(10th Cir. 1994).\\n\\n Because this is a diversity action, we “apply the substantive law of the forum\\n\\nstate.” Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241,\\n\\n1255 (10th Cir. 2005). The parties agree that MTI’s claim is governed by Oklahoma\\n\\ncontract law, and that there are no binding decisions on this precise issue from the\\n\\nstate courts. We accordingly seek to predict how the Oklahoma Supreme Court\\n\\nwould rule. See Carl v. City of Overland Park, 65 F.3d 866, 872 (10th Cir. 1995).\\n\\n A\\n\\n Under Oklahoma law, “[w]hen addressing a dispute concerning the language\\n\\nof an insurance policy our first step is to determine as a matter of law whether the\\n\\npolicy language at issue is ambiguous.” Cranfill v. Aetna Life Ins. Co., 49 P.3d 703,\\n\\n706 (Okla. 2002). A provision is ambiguous if it is facially susceptible to two\\n\\ninterpretations, considered from the standpoint of a reasonably prudent layperson. Id.\\n\\nIf the language is not ambiguous, “we accept the language in its plain, ordinary and\\n\\npopular sense.” Id.\\n\\n 5\\n\\f Our initial inquiry is thus whether exclusions j(5) and j(6) are ambiguous.\\n\\nExclusion j(5) excludes coverage for property damage to “[t]hat particular part . . . on\\n\\nwhich you . . . are performing operations, if the ‘property damage’ arises out of those\\n\\noperations.” Similarly, exclusion j(6) excludes property damage to “[t]hat particular\\n\\npart of any property that must be restored, repaired or replaced because ‘your work’\\n\\nwas incorrectly performed on it.” The key phrase for this appeal is “that particular\\n\\npart.”\\n\\n Although the Oklahoma Supreme Court has not explicitly addressed this\\n\\nlanguage, these specific exclusions have received inconsistent treatment from a\\n\\nnumber of other state and federal courts. See, e.g., Roaring Lion, LLC v. Nautilus\\n\\nIns. Co., No. CV 11-2-M-DWM-JCL, 2011 WL 3956132, at *5-7 (D. Mont. July 15,\\n\\n2011) (unpublished) (noting the varied interpretations of these exclusions). The fact\\n\\nthat jurisdictions have differed in their evaluation of terms does not, however,\\n\\nestablish that the language in question is necessarily ambiguous. BP Am., Inc. v.\\n\\nState Auto Prop. & Cas. Ins. Co., 148 P.3d 832, 836 (Okla. 2005), as corrected (Oct.\\n\\n30, 2006).\\n\\n As several courts have explained, “that particular part” is narrowing language.\\n\\nSee Fortney & Weygandt, Inc. v. Am. Mfrs. Mut. Ins. Co., 595 F.3d 308, 311 (6th\\n\\nCir. 2010) (describing the words “that particular part” as “trebly restrictive, straining\\n\\nto the point of awkwardness to make clear that the exclusion applies only to building\\n\\nparts on which defective work was performed, and not to the building generally”);\\n\\nMid-Continent Cas. Co. v. JHP Dev., Inc., 557 F.3d 207, 215 (5th Cir. 2009) (noting\\n\\n 6\\n\\f“[t]he narrowing ‘that particular part’ language”); Columbia Mut. Ins. Co. v. Schauf,\\n\\n967 S.W.2d 74, 80 (Mo. 1998) (“By using the words particular part, the provision\\n\\nevidences the intent to narrow the scope of the exclusion as much as possible.”\\n\\n(emphasis omitted)); ACUITY v. Burd & Smith Constr., Inc., 721 N.W.2d 33, 41\\n\\n(N.D. 2006) (pointing to “the limiting language ‘particular part of real property’”);\\n\\nGlob. Modular, Inc. v. Kadena Pac., Inc., 222 Cal. Rptr. 3d 819, 829 (Cal. Ct. App.\\n\\n2017) (holding that “the phrase is intended to be a narrowing element, one that limits\\n\\nthe provision’s application to a distinct part of a construction project”). These courts\\n\\nhave thus determined the scope of coverage by looking to the “distinct component\\n\\nparts” on which an insured conducts operations. Mid-Continent, 557 F.3d at 217.\\n\\n Several of these cases are instructive. In Mid-Continent, the Fifth Circuit held\\n\\nthat exclusion j(6) did not bar coverage for damage to interior work caused by the\\n\\nfailure to properly water seal exterior finishes and retaining walls because “[t]he\\n\\nexterior finishes and retaining walls were distinct component parts that were each the\\n\\nsubject of separate construction processes and are severable from the” interior\\n\\ncomponents. Id. Similarly, in Fortney & Weygandt, the Sixth Circuit concluded that\\n\\nexclusion j(6) did not bar coverage for a restaurant that had to be completely rebuilt\\n\\ndue to faulty foundation work by the insured. 595 F.3d at 309-11. In ACUITY, the\\n\\nNorth Dakota Supreme Court held that a contractor hired to do work on a roof could\\n\\nrecover for damage to the interior of an apartment building caused by defective work\\n\\non the roof. 721 N.W.2d at 42. And in Shauf, the Missouri Supreme Court\\n\\nconcluded that only kitchen cabinets were excluded when a machine being used on\\n\\n 7\\n\\fthose cabinets caused a fire that resulted in damage throughout a home. 967 S.W.2d\\n\\nat 76, 81.\\n\\n Other courts have adopted a broader reading. For example, in William\\n\\nCrawford, Inc. v. Travelers Ins. Co., 838 F. Supp. 157 (S.D.N.Y. 1993), the court\\n\\nrejected the argument that “(j)(5) only excludes coverage for the damage to that\\n\\nspecific part of the apartment on which [the insured] was actually doing work when\\n\\nthe accident occurred,” instead holding that damage to the entire apartment was\\n\\nexcluded. Id. at 158. Similarly, in Jet Line Services, Inc. v. American Employers\\n\\nIns. Co., 537 N.E.2d 107 (Mass. 1989), the court remarked that “whether at the time\\n\\nof the property damage an employee of the insured is or is not in one area or another\\n\\nof the property on which the insured has agreed to perform operations is not\\n\\nsignificant to the coverage question.” Id. at 111.\\n\\n Under Oklahoma law, it is the responsibility of the insurer desiring to limit\\n\\nliability to employ clear language in the contract. Haworth v. Jantzen, 172 P.3d 193,\\n\\n197 (Okla. 2006). Wausau has failed to do so in this case. The phrase “that\\n\\nparticular part” could be read to refer solely to the direct object on which the insured\\n\\nwas operating. Alternatively, it could apply to those parts of the project directly\\n\\nimpacted by the insured party’s work. We agree with those courts that have held the\\n\\nformer interpretation is a reasonable one, although we acknowledge that the latter is\\n\\nalso reasonable. Because both readings are permissible, the exclusions are facially\\n\\nambiguous. Cranfill, 49 P.3d at 706.\\n\\n\\n\\n 8\\n\\f B\\n\\n “If the language is ambiguous, we apply well-settled rules of construction to\\n\\ndetermine the meaning of the ambiguous language.” Id. Specifically, it is our\\n\\nmandate to “construe the policy to give a reasonable effect to all of its provisions,\\n\\nand we liberally construe words of inclusion in favor of the insured and strictly\\n\\nconstrue words of exclusion against the insurer.” Id. (citation omitted); see also\\n\\nDodson v. St. Paul Ins. Co., 812 P.2d 372, 377 (Okla. 1991) (“In case of doubt,\\n\\nexclusions exempting certain specified risks are construed strictly against the\\n\\ninsurer.”).\\n\\n Because the exclusions are ambiguous, they must be strictly and narrowly\\n\\nconstrued in a manner favorable to the insured party. Haworth, 172 P.3d at 197. “In\\n\\nconstruing an ambiguity or uncertainty against the insurer and in favor of the insured,\\n\\nOklahoma looks to the objectively reasonable expectations of the insured to fashion a\\n\\nremedy.” Id. Further, “an interpretation which makes a contract fair and reasonable\\n\\nis selected over that which yields a harsh or unreasonable result.” Max True\\n\\nPlastering Co. v. U.S. Fid. & Guar. Co., 912 P.2d 861, 865 (Okla. 1996). In this\\n\\ncase, interpreting “that particular part” to refer to the distinct components upon which\\n\\nwork is performed best comports with these rules of interpretation.\\n\\n Even under this definition, determining the “particular part” on which an\\n\\ninsured works “will vary with the facts and circumstances of each particular case.”\\n\\nVinsant Elec. Contractors v. Aetna Cas. & Sur. Co., 530 S.W.2d 76, 77 (Tenn. 1975).\\n\\nIn some instances, a larger unit will properly be considered the particular part. See,\\n\\n 9\\n\\fe.g., Jet Line Servs., 537 N.E.2d at 111 (concluding exclusion j(5) barred coverage\\n\\nfor entire fuel tank rather than only the bottom portion of the tank because insured\\n\\n“was retained to clean the entire tank, and it was the entire tank on which operations\\n\\nwere being performed within the meaning of the policy language”). In some cases,\\n\\nan entire structure may qualify. For example, several cases have held that the\\n\\nexclusions so apply when an insured was hired to raise the entire structure. See, e.g.,\\n\\nLafayette Ins. Co. v. Peerboom, 813 F. Supp. 2d 823, 834 (S.D. Miss. 2011); Grinnell\\n\\nMut. Reinsurance Co. v. Lynne, 686 N.W.2d 118, 125 (N.D. 2004).\\n\\n As applied to the facts of this case, we conclude the “particular part” on which\\n\\nMTI was “performing operations” and upon which work “was incorrectly performed”\\n\\nshould reasonably be understood as the anchor bolts. Those bolts constitute “distinct\\n\\ncomponent parts” of the tower, analogous to items like “interior drywall, stud\\n\\nframing, electrical wiring, and wood flooring.” Mid-Continent, 557 F.3d at 217.\\n\\nMTI performed work incorrectly by removing them without promptly replacing them\\n\\nor bracing the structure. We further conclude it is objectively reasonable that MTI\\n\\nwould expect coverage for the cost of replacing the entire tower, including all of its\\n\\noperational elements, given the ambiguous language of exclusions j(5) and j(6).\\n\\n C\\n\\n Contrary to Wausau’s assertion, interpreting the Policy in this manner does not\\n\\nconvert it into a performance bond. See generally Black & Veatch Corp. v. Aspen\\n\\nIns. (Uk) Ltd, 882 F.3d 952, 969 (10th Cir. 2018) (“Both insurance policies and\\n\\nperformance bonds are used to spread risk, but they differ in fundamental ways. An\\n\\n 10\\n\\finsurance policy spreads the contractor’s risk. A performance bond guarantees\\n\\ncompletion of the contract upon the contractor’s default.”). In Dodson, the\\n\\nOklahoma Supreme Court, interpreting a different policy provision, noted that it\\n\\nwould be inappropriate to “effectively convert [a] policy into a performance bond or\\n\\nguarantee of contractual performance” by reading a policy to cover “the repair and\\n\\nreplacement of the insured’s own faulty workmanship.” 812 P.2d at 378 (quotation\\n\\nomitted). But that concern is not at issue here. MTI is not requesting that Wausau\\n\\ncover the cost of replacing the anchor bolts, which would be the heart of any faulty\\n\\nworkmanship claim. The Dodson decision recognized this distinction, stating that a\\n\\npolicy would provide coverage if the insured’s faulty workmanship “results in\\n\\ndamage to property other than the insured’s work or product.” Id. (quotation\\n\\nomitted). The monetary values at issue underline this point. MTI agreed to complete\\n\\ncertain work for $46,273. A performance bond for such a project would not likely\\n\\nresult in liability of over $1.4 million.\\n\\n Similarly, we are not persuaded by Wausau’s argument that the Policy\\n\\ncontains an implied “business risk exclusion” that would otherwise override the\\n\\nexpress language. Absent a violation of public policy, businesses are free to contract\\n\\nto their preferred degree of risk embodied by the precise terms by which they choose\\n\\nto articulate the insurance relationship. See generally Siloam Springs Hotel, LLC v.\\n\\nCentury Sur. Co., 392 P.3d 262, 268 (Okla. 2017). Oklahoma courts do not, as a\\n\\nmatter of course, read broad business risk exclusions into contracts, and this court\\n\\nwill not do so when it would override the express language of the contract. See Mid-\\n\\n 11\\n\\fContinent, 557 F.3d at 216 (dismissing similar argument because “whether there is\\n\\ncoverage in a particular case depends on the language contained in the policy at\\n\\nissue”).\\n\\n Finally, we reject Wausau’s contention that this court has previously decided\\n\\nthe issue presented. Our court has considered these exclusions, albeit under Kansas\\n\\nlaw. See Advantage Homebuilding, LLC v. Maryland Cas. Co., 470 F.3d 1003 (10th\\n\\nCir. 2006). In that case, we held that exclusions j(5) and j(6) apply when property\\n\\ndamage occurs while the insured’s work is ongoing regardless of when the damage is\\n\\ndiscovered. Id. at 1010-12. Wausau focuses on two sentences of that opinion. We\\n\\nstated that exclusion j(5) applies “whenever property damage arises out of the work\\n\\nof the insured, its contractors, or its subcontractors while performing operations.” Id.\\n\\nat 1011 (quotation and italics omitted). We also stated that exclusion j(6) “was\\n\\nintended to exclude ‘property damage’ that directly or consequentially occurs from\\n\\nthe faulty workmanship of the insured.” Id. at 1012.\\n\\n But Advantage did not address the meaning of the phrase “that particular part.”\\n\\nIt had no occasion to do so because the insured there contracted to build entire\\n\\nhomes. Id. at 1009. Accordingly, any statement made in Advantage as to that\\n\\nquestion would constitute dicta. And as we have previously noted, dicta, “being\\n\\nperipheral, may not have received the full and careful consideration of the court that\\n\\nuttered it.” OXY USA, Inc. v. Babbitt, 230 F.3d 1178, 1184 (10th Cir. 2000)\\n\\n(quotation omitted). Further, Wausau’s argument based on Advantage plainly goes\\n\\ntoo far. If, for example, portions of Tower 1 broke free during the windstorm and\\n\\n 12\\n\\fdestroyed nearby homes, that damage would fit within the description offered in\\n\\nAdvantage. 470 F.3d at 1011, 1012. But there is no argument to be made that nearby\\n\\nhomes would qualify as “that particular part” of the property on which MTI was\\n\\nworking.\\n\\n III\\n\\n For the forgoing reasons, we REVERSE the district court’s grant of summary\\n\\njudgment in favor of Wausau and remand for further proceedings construing the\\n\\nambiguous exclusions in favor of MTI.\\n\\n\\n\\n\\n 13\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4362073/\", \"author_raw\": \"LUCERO, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"LUCERO"},"judge2":{"kind":"string","value":"MCKAY"},"judge3":{"kind":"string","value":"MATHESON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4584820/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: MTI, INC., Formerly Midwest Towers, Inc., Plaintiff - Appellant v. EMPLOYERS INSURANCE COMPANY OF WAUSAU, Defendant - Appellee.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-25\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 25, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\nMTI, INC., formerly Midwest Towers,\nInc.,\n\n Plaintiff - Appellant\n\nv. No. 17-6206\n\nEMPLOYERS INSURANCE COMPANY\nOF WAUSAU,\n\n Defendant - Appellee.\n _________________________________\n\n Appeal from the United States District Court\n for the Western District of Oklahoma\n (D.C. No. 5:15-CV-00716-R)\n _________________________________\n\nF. Thomas Cordell, Frailey, Chaffin, Cordell, Perryman & Sterkel, LLP, Chickasha,\nOklahoma, (Mort G. Welch, Welch & Smith, P.C., Oklahoma City, Oklahoma, with him\non the briefs), for Plaintiff-Appellant.\n\nJeffrey Gerish, Plunkett Cooney, P.C., Bloomfield Hills, Michigan, (Joseph R. Farris and\nEmily D. Pearson, Franden, Farris, Quillin, Goodnight & Roberts, Tulsa, Oklahoma, with\nhim on the briefs), for Defendant-Appellee.\n\n _________________________________\n\nBefore LUCERO, McKAY, and MATHESON, Circuit Judges.\n _________________________________\n\nLUCERO, Circuit Judge.\n _________________________________\n\f In this appeal, we consider two exclusions from a commercial general liability\n\npolicy that bar coverage for damage to “that particular part” of the property on which\n\nan insured is performing operations, or which must be repaired or replaced due to the\n\ninsured’s incorrect work. Under Oklahoma law, our analysis proceeds in two steps.\n\nFirst, we must determine as a matter of law whether the exclusions are ambiguous.\n\nKerr-McGee Corp. v. Admiral Ins. Co., 905 P.2d 760, 762 (Okla. 1995). We\n\nconclude the phrase “that particular part” is susceptible to more than one reasonable\n\nconstruction: it could refer to the distinct component upon which an insured works\n\nor to all parts ultimately impacted by that work.\n\n Because the language at issue is ambiguous we proceed to the second step, in\n\nwhich “the contract will be interpreted consistent with the mutual intent of the\n\nparties, with the ambiguity resolved most favorably to the insured and against the\n\ninsurance carrier.” Id. We thus adopt the narrower interpretation of the phrase “that\n\nparticular part,” under which the exclusion extends only to the distinct components\n\nupon which work was performed. Exercising jurisdiction under 28 U.S.C. § 1291,\n\nwe reverse.\n\n I\n\n Western Farmers Electrical Cooperative (“WFEC”) owns cooling towers in\n\nOklahoma, which were serviced by MTI, Inc. (“MTI”), the appellant in this case.\n\nEmployers Insurance Company of Wausau (“Wausau”), the appellee, provided a\n\ncommercial general liability policy (the “Policy”) to MTI at all times material to this\n\nappeal.\n\n 2\n\f A 2011 inspection by MTI revealed that the anchor bolts in Cooling Tower 1\n\nwere corroded. MTI and WFEC agreed to a new repair contract, which included the\n\nfollowing work:\n\n Unit 1 Tower Anchors\n Throughout the entire basin, install new 304 SS anchor castings.\n Included will be 304SS anchor bolts and Hilti anchor adhesive.\n\n Unit 1 Louvers\n On four (4) cells, remove existing louvers and install a (3) row louver\n system. New louvers will consist of 12oz. 4.2” corrugated FRP panels\n supported on 2”x4” Douglas Fir supports. Included will be new\n polypropylene support arms. Also included will be all necessary 304\n stainless steel hardware.\n\nRepairs on a separate cooling tower were also listed in the Tower 1 contract. The\n\ncooling towers at issue are mostly wood structures, approximately 50 feet wide, 150\n\nfeet long, and 70 feet tall. They are set in sump pits approximately 12 feet deep. The\n\ntowers are stabilized with lateral wooden bracing beams, which are connected to the\n\nconcrete foundation of the sump pit with anchor bolts.\n\n On May 23, 2011, MTI employees removed all 64 corroded anchor bolts in\n\nTower 1. Because the adhesive applicator had not yet arrived, MTI did not\n\nimmediately install new anchor bolts. Further, MTI did not provide any temporary\n\nsupport to ensure the stability of the tower. On the night of May 24, extremely high\n\nwinds struck the tower, causing it to lean and several structural components to break.\n\nDue to the extent of the structural damage, removal and replacement of the tower was\n\ndetermined to be the only viable option. Although at least some internal operational\n\n\n\n\n 3\n\fequipment was not damaged, this equipment was deemed too dangerous to access and\n\nrecover.\n\n WFEC demanded MTI pay the cost of removing and replacing the entire\n\ntower, which totaled over $1.4 million. MTI filed a claim for coverage with its\n\ninsurer, Wausau, under the Policy. After Wausau declined to provide coverage, MTI\n\ndirectly negotiated a settlement of $350,000 with WFEC. The balance of the tower\n\nreplacement cost was borne by WFEC’s insurer. MTI then sought recoupment of its\n\nsettlement amount from Wausau.\n\n The parties agree that the Policy was active at the time of the incident.\n\nWausau denied coverage under two exclusions. Those provisions bar coverage for:\n\n j. Damage To Property\n\n “Property damage” to:\n ....\n\n (5) That particular part of real property on which you or any contractors\n or subcontractors working directly or indirectly on your behalf are\n performing operations, if the “property damage” arises out of those\n operations; or\n\n (6) That particular part of any property that must be restored, repaired or\n replaced because “your work” was incorrectly performed on it.\n\n MTI eventually filed suit against Wausau in Oklahoma state court for breach\n\nof contract. Wausau removed the case to federal court. On Wausau’s motion for\n\nsummary judgment, the district court held that the events described fell within the\n\nscope of both exclusion j(5) and j(6), and entered judgment in favor of Wausau. MTI\n\ntimely appealed.\n\n\n 4\n\f II\n\n We review a district court’s grant of summary judgment de novo. Greystone\n\nConstr., Inc. v. Nat’l Fire & Marine Ins. Co., 661 F.3d 1272, 1277 (10th Cir. 2011),\n\nas amended on reh’g in part (Dec. 23, 2011). Summary judgment is appropriate only\n\nif there is no genuine issue of material fact and the moving party is entitled to\n\njudgment as a matter of law. Id. We also review a district court’s interpretation of\n\nstate contract law de novo. City of Wichita v. Sw. Bell Tel. Co., 24 F.3d 1282, 1286\n\n(10th Cir. 1994).\n\n Because this is a diversity action, we “apply the substantive law of the forum\n\nstate.” Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241,\n\n1255 (10th Cir. 2005). The parties agree that MTI’s claim is governed by Oklahoma\n\ncontract law, and that there are no binding decisions on this precise issue from the\n\nstate courts. We accordingly seek to predict how the Oklahoma Supreme Court\n\nwould rule. See Carl v. City of Overland Park, 65 F.3d 866, 872 (10th Cir. 1995).\n\n A\n\n Under Oklahoma law, “[w]hen addressing a dispute concerning the language\n\nof an insurance policy our first step is to determine as a matter of law whether the\n\npolicy language at issue is ambiguous.” Cranfill v. Aetna Life Ins. Co., 49 P.3d 703,\n\n706 (Okla. 2002). A provision is ambiguous if it is facially susceptible to two\n\ninterpretations, considered from the standpoint of a reasonably prudent layperson. Id.\n\nIf the language is not ambiguous, “we accept the language in its plain, ordinary and\n\npopular sense.” Id.\n\n 5\n\f Our initial inquiry is thus whether exclusions j(5) and j(6) are ambiguous.\n\nExclusion j(5) excludes coverage for property damage to “[t]hat particular part . . . on\n\nwhich you . . . are performing operations, if the ‘property damage’ arises out of those\n\noperations.” Similarly, exclusion j(6) excludes property damage to “[t]hat particular\n\npart of any property that must be restored, repaired or replaced because ‘your work’\n\nwas incorrectly performed on it.” The key phrase for this appeal is “that particular\n\npart.”\n\n Although the Oklahoma Supreme Court has not explicitly addressed this\n\nlanguage, these specific exclusions have received inconsistent treatment from a\n\nnumber of other state and federal courts. See, e.g., Roaring Lion, LLC v. Nautilus\n\nIns. Co., No. CV 11-2-M-DWM-JCL, 2011 WL 3956132, at *5-7 (D. Mont. July 15,\n\n2011) (unpublished) (noting the varied interpretations of these exclusions). The fact\n\nthat jurisdictions have differed in their evaluation of terms does not, however,\n\nestablish that the language in question is necessarily ambiguous. BP Am., Inc. v.\n\nState Auto Prop. & Cas. Ins. Co., 148 P.3d 832, 836 (Okla. 2005), as corrected (Oct.\n\n30, 2006).\n\n As several courts have explained, “that particular part” is narrowing language.\n\nSee Fortney & Weygandt, Inc. v. Am. Mfrs. Mut. Ins. Co., 595 F.3d 308, 311 (6th\n\nCir. 2010) (describing the words “that particular part” as “trebly restrictive, straining\n\nto the point of awkwardness to make clear that the exclusion applies only to building\n\nparts on which defective work was performed, and not to the building generally”);\n\nMid-Continent Cas. Co. v. JHP Dev., Inc., 557 F.3d 207, 215 (5th Cir. 2009) (noting\n\n 6\n\f“[t]he narrowing ‘that particular part’ language”); Columbia Mut. Ins. Co. v. Schauf,\n\n967 S.W.2d 74, 80 (Mo. 1998) (“By using the words particular part, the provision\n\nevidences the intent to narrow the scope of the exclusion as much as possible.”\n\n(emphasis omitted)); ACUITY v. Burd & Smith Constr., Inc., 721 N.W.2d 33, 41\n\n(N.D. 2006) (pointing to “the limiting language ‘particular part of real property’”);\n\nGlob. Modular, Inc. v. Kadena Pac., Inc., 222 Cal. Rptr. 3d 819, 829 (Cal. Ct. App.\n\n2017) (holding that “the phrase is intended to be a narrowing element, one that limits\n\nthe provision’s application to a distinct part of a construction project”). These courts\n\nhave thus determined the scope of coverage by looking to the “distinct component\n\nparts” on which an insured conducts operations. Mid-Continent, 557 F.3d at 217.\n\n Several of these cases are instructive. In Mid-Continent, the Fifth Circuit held\n\nthat exclusion j(6) did not bar coverage for damage to interior work caused by the\n\nfailure to properly water seal exterior finishes and retaining walls because “[t]he\n\nexterior finishes and retaining walls were distinct component parts that were each the\n\nsubject of separate construction processes and are severable from the” interior\n\ncomponents. Id. Similarly, in Fortney & Weygandt, the Sixth Circuit concluded that\n\nexclusion j(6) did not bar coverage for a restaurant that had to be completely rebuilt\n\ndue to faulty foundation work by the insured. 595 F.3d at 309-11. In ACUITY, the\n\nNorth Dakota Supreme Court held that a contractor hired to do work on a roof could\n\nrecover for damage to the interior of an apartment building caused by defective work\n\non the roof. 721 N.W.2d at 42. And in Shauf, the Missouri Supreme Court\n\nconcluded that only kitchen cabinets were excluded when a machine being used on\n\n 7\n\fthose cabinets caused a fire that resulted in damage throughout a home. 967 S.W.2d\n\nat 76, 81.\n\n Other courts have adopted a broader reading. For example, in William\n\nCrawford, Inc. v. Travelers Ins. Co., 838 F. Supp. 157 (S.D.N.Y. 1993), the court\n\nrejected the argument that “(j)(5) only excludes coverage for the damage to that\n\nspecific part of the apartment on which [the insured] was actually doing work when\n\nthe accident occurred,” instead holding that damage to the entire apartment was\n\nexcluded. Id. at 158. Similarly, in Jet Line Services, Inc. v. American Employers\n\nIns. Co., 537 N.E.2d 107 (Mass. 1989), the court remarked that “whether at the time\n\nof the property damage an employee of the insured is or is not in one area or another\n\nof the property on which the insured has agreed to perform operations is not\n\nsignificant to the coverage question.” Id. at 111.\n\n Under Oklahoma law, it is the responsibility of the insurer desiring to limit\n\nliability to employ clear language in the contract. Haworth v. Jantzen, 172 P.3d 193,\n\n197 (Okla. 2006). Wausau has failed to do so in this case. The phrase “that\n\nparticular part” could be read to refer solely to the direct object on which the insured\n\nwas operating. Alternatively, it could apply to those parts of the project directly\n\nimpacted by the insured party’s work. We agree with those courts that have held the\n\nformer interpretation is a reasonable one, although we acknowledge that the latter is\n\nalso reasonable. Because both readings are permissible, the exclusions are facially\n\nambiguous. Cranfill, 49 P.3d at 706.\n\n\n\n 8\n\f B\n\n “If the language is ambiguous, we apply well-settled rules of construction to\n\ndetermine the meaning of the ambiguous language.” Id. Specifically, it is our\n\nmandate to “construe the policy to give a reasonable effect to all of its provisions,\n\nand we liberally construe words of inclusion in favor of the insured and strictly\n\nconstrue words of exclusion against the insurer.” Id. (citation omitted); see also\n\nDodson v. St. Paul Ins. Co., 812 P.2d 372, 377 (Okla. 1991) (“In case of doubt,\n\nexclusions exempting certain specified risks are construed strictly against the\n\ninsurer.”).\n\n Because the exclusions are ambiguous, they must be strictly and narrowly\n\nconstrued in a manner favorable to the insured party. Haworth, 172 P.3d at 197. “In\n\nconstruing an ambiguity or uncertainty against the insurer and in favor of the insured,\n\nOklahoma looks to the objectively reasonable expectations of the insured to fashion a\n\nremedy.” Id. Further, “an interpretation which makes a contract fair and reasonable\n\nis selected over that which yields a harsh or unreasonable result.” Max True\n\nPlastering Co. v. U.S. Fid. & Guar. Co., 912 P.2d 861, 865 (Okla. 1996). In this\n\ncase, interpreting “that particular part” to refer to the distinct components upon which\n\nwork is performed best comports with these rules of interpretation.\n\n Even under this definition, determining the “particular part” on which an\n\ninsured works “will vary with the facts and circumstances of each particular case.”\n\nVinsant Elec. Contractors v. Aetna Cas. & Sur. Co., 530 S.W.2d 76, 77 (Tenn. 1975).\n\nIn some instances, a larger unit will properly be considered the particular part. See,\n\n 9\n\fe.g., Jet Line Servs., 537 N.E.2d at 111 (concluding exclusion j(5) barred coverage\n\nfor entire fuel tank rather than only the bottom portion of the tank because insured\n\n“was retained to clean the entire tank, and it was the entire tank on which operations\n\nwere being performed within the meaning of the policy language”). In some cases,\n\nan entire structure may qualify. For example, several cases have held that the\n\nexclusions so apply when an insured was hired to raise the entire structure. See, e.g.,\n\nLafayette Ins. Co. v. Peerboom, 813 F. Supp. 2d 823, 834 (S.D. Miss. 2011); Grinnell\n\nMut. Reinsurance Co. v. Lynne, 686 N.W.2d 118, 125 (N.D. 2004).\n\n As applied to the facts of this case, we conclude the “particular part” on which\n\nMTI was “performing operations” and upon which work “was incorrectly performed”\n\nshould reasonably be understood as the anchor bolts. Those bolts constitute “distinct\n\ncomponent parts” of the tower, analogous to items like “interior drywall, stud\n\nframing, electrical wiring, and wood flooring.” Mid-Continent, 557 F.3d at 217.\n\nMTI performed work incorrectly by removing them without promptly replacing them\n\nor bracing the structure. We further conclude it is objectively reasonable that MTI\n\nwould expect coverage for the cost of replacing the entire tower, including all of its\n\noperational elements, given the ambiguous language of exclusions j(5) and j(6).\n\n C\n\n Contrary to Wausau’s assertion, interpreting the Policy in this manner does not\n\nconvert it into a performance bond. See generally Black & Veatch Corp. v. Aspen\n\nIns. (Uk) Ltd, 882 F.3d 952, 969 (10th Cir. 2018) (“Both insurance policies and\n\nperformance bonds are used to spread risk, but they differ in fundamental ways. An\n\n 10\n\finsurance policy spreads the contractor’s risk. A performance bond guarantees\n\ncompletion of the contract upon the contractor’s default.”). In Dodson, the\n\nOklahoma Supreme Court, interpreting a different policy provision, noted that it\n\nwould be inappropriate to “effectively convert [a] policy into a performance bond or\n\nguarantee of contractual performance” by reading a policy to cover “the repair and\n\nreplacement of the insured’s own faulty workmanship.” 812 P.2d at 378 (quotation\n\nomitted). But that concern is not at issue here. MTI is not requesting that Wausau\n\ncover the cost of replacing the anchor bolts, which would be the heart of any faulty\n\nworkmanship claim. The Dodson decision recognized this distinction, stating that a\n\npolicy would provide coverage if the insured’s faulty workmanship “results in\n\ndamage to property other than the insured’s work or product.” Id. (quotation\n\nomitted). The monetary values at issue underline this point. MTI agreed to complete\n\ncertain work for $46,273. A performance bond for such a project would not likely\n\nresult in liability of over $1.4 million.\n\n Similarly, we are not persuaded by Wausau’s argument that the Policy\n\ncontains an implied “business risk exclusion” that would otherwise override the\n\nexpress language. Absent a violation of public policy, businesses are free to contract\n\nto their preferred degree of risk embodied by the precise terms by which they choose\n\nto articulate the insurance relationship. See generally Siloam Springs Hotel, LLC v.\n\nCentury Sur. Co., 392 P.3d 262, 268 (Okla. 2017). Oklahoma courts do not, as a\n\nmatter of course, read broad business risk exclusions into contracts, and this court\n\nwill not do so when it would override the express language of the contract. See Mid-\n\n 11\n\fContinent, 557 F.3d at 216 (dismissing similar argument because “whether there is\n\ncoverage in a particular case depends on the language contained in the policy at\n\nissue”).\n\n Finally, we reject Wausau’s contention that this court has previously decided\n\nthe issue presented. Our court has considered these exclusions, albeit under Kansas\n\nlaw. See Advantage Homebuilding, LLC v. Maryland Cas. Co., 470 F.3d 1003 (10th\n\nCir. 2006). In that case, we held that exclusions j(5) and j(6) apply when property\n\ndamage occurs while the insured’s work is ongoing regardless of when the damage is\n\ndiscovered. Id. at 1010-12. Wausau focuses on two sentences of that opinion. We\n\nstated that exclusion j(5) applies “whenever property damage arises out of the work\n\nof the insured, its contractors, or its subcontractors while performing operations.” Id.\n\nat 1011 (quotation and italics omitted). We also stated that exclusion j(6) “was\n\nintended to exclude ‘property damage’ that directly or consequentially occurs from\n\nthe faulty workmanship of the insured.” Id. at 1012.\n\n But Advantage did not address the meaning of the phrase “that particular part.”\n\nIt had no occasion to do so because the insured there contracted to build entire\n\nhomes. Id. at 1009. Accordingly, any statement made in Advantage as to that\n\nquestion would constitute dicta. And as we have previously noted, dicta, “being\n\nperipheral, may not have received the full and careful consideration of the court that\n\nuttered it.” OXY USA, Inc. v. Babbitt, 230 F.3d 1178, 1184 (10th Cir. 2000)\n\n(quotation omitted). Further, Wausau’s argument based on Advantage plainly goes\n\ntoo far. If, for example, portions of Tower 1 broke free during the windstorm and\n\n 12\n\fdestroyed nearby homes, that damage would fit within the description offered in\n\nAdvantage. 470 F.3d at 1011, 1012. But there is no argument to be made that nearby\n\nhomes would qualify as “that particular part” of the property on which MTI was\n\nworking.\n\n III\n\n For the forgoing reasons, we REVERSE the district court’s grant of summary\n\njudgment in favor of Wausau and remand for further proceedings construing the\n\nambiguous exclusions in favor of MTI.\n\n\n\n\n 13\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: MTI, INC., Formerly Midwest Towers, Inc., Plaintiff - Appellant v. EMPLOYERS INSURANCE COMPANY OF WAUSAU, Defendant - Appellee.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-01-25\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS January 25, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\nMTI, INC., formerly Midwest Towers,\\nInc.,\\n\\n Plaintiff - Appellant\\n\\nv. No. 17-6206\\n\\nEMPLOYERS INSURANCE COMPANY\\nOF WAUSAU,\\n\\n Defendant - Appellee.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the Western District of Oklahoma\\n (D.C. No. 5:15-CV-00716-R)\\n _________________________________\\n\\nF. Thomas Cordell, Frailey, Chaffin, Cordell, Perryman & Sterkel, LLP, Chickasha,\\nOklahoma, (Mort G. Welch, Welch & Smith, P.C., Oklahoma City, Oklahoma, with him\\non the briefs), for Plaintiff-Appellant.\\n\\nJeffrey Gerish, Plunkett Cooney, P.C., Bloomfield Hills, Michigan, (Joseph R. Farris and\\nEmily D. Pearson, Franden, Farris, Quillin, Goodnight & Roberts, Tulsa, Oklahoma, with\\nhim on the briefs), for Defendant-Appellee.\\n\\n _________________________________\\n\\nBefore LUCERO, McKAY, and MATHESON, Circuit Judges.\\n _________________________________\\n\\nLUCERO, Circuit Judge.\\n _________________________________\\n\\f In this appeal, we consider two exclusions from a commercial general liability\\n\\npolicy that bar coverage for damage to “that particular part” of the property on which\\n\\nan insured is performing operations, or which must be repaired or replaced due to the\\n\\ninsured’s incorrect work. Under Oklahoma law, our analysis proceeds in two steps.\\n\\nFirst, we must determine as a matter of law whether the exclusions are ambiguous.\\n\\nKerr-McGee Corp. v. Admiral Ins. Co., 905 P.2d 760, 762 (Okla. 1995). We\\n\\nconclude the phrase “that particular part” is susceptible to more than one reasonable\\n\\nconstruction: it could refer to the distinct component upon which an insured works\\n\\nor to all parts ultimately impacted by that work.\\n\\n Because the language at issue is ambiguous we proceed to the second step, in\\n\\nwhich “the contract will be interpreted consistent with the mutual intent of the\\n\\nparties, with the ambiguity resolved most favorably to the insured and against the\\n\\ninsurance carrier.” Id. We thus adopt the narrower interpretation of the phrase “that\\n\\nparticular part,” under which the exclusion extends only to the distinct components\\n\\nupon which work was performed. Exercising jurisdiction under 28 U.S.C. § 1291,\\n\\nwe reverse.\\n\\n I\\n\\n Western Farmers Electrical Cooperative (“WFEC”) owns cooling towers in\\n\\nOklahoma, which were serviced by MTI, Inc. (“MTI”), the appellant in this case.\\n\\nEmployers Insurance Company of Wausau (“Wausau”), the appellee, provided a\\n\\ncommercial general liability policy (the “Policy”) to MTI at all times material to this\\n\\nappeal.\\n\\n 2\\n\\f A 2011 inspection by MTI revealed that the anchor bolts in Cooling Tower 1\\n\\nwere corroded. MTI and WFEC agreed to a new repair contract, which included the\\n\\nfollowing work:\\n\\n Unit 1 Tower Anchors\\n Throughout the entire basin, install new 304 SS anchor castings.\\n Included will be 304SS anchor bolts and Hilti anchor adhesive.\\n\\n Unit 1 Louvers\\n On four (4) cells, remove existing louvers and install a (3) row louver\\n system. New louvers will consist of 12oz. 4.2” corrugated FRP panels\\n supported on 2”x4” Douglas Fir supports. Included will be new\\n polypropylene support arms. Also included will be all necessary 304\\n stainless steel hardware.\\n\\nRepairs on a separate cooling tower were also listed in the Tower 1 contract. The\\n\\ncooling towers at issue are mostly wood structures, approximately 50 feet wide, 150\\n\\nfeet long, and 70 feet tall. They are set in sump pits approximately 12 feet deep. The\\n\\ntowers are stabilized with lateral wooden bracing beams, which are connected to the\\n\\nconcrete foundation of the sump pit with anchor bolts.\\n\\n On May 23, 2011, MTI employees removed all 64 corroded anchor bolts in\\n\\nTower 1. Because the adhesive applicator had not yet arrived, MTI did not\\n\\nimmediately install new anchor bolts. Further, MTI did not provide any temporary\\n\\nsupport to ensure the stability of the tower. On the night of May 24, extremely high\\n\\nwinds struck the tower, causing it to lean and several structural components to break.\\n\\nDue to the extent of the structural damage, removal and replacement of the tower was\\n\\ndetermined to be the only viable option. Although at least some internal operational\\n\\n\\n\\n\\n 3\\n\\fequipment was not damaged, this equipment was deemed too dangerous to access and\\n\\nrecover.\\n\\n WFEC demanded MTI pay the cost of removing and replacing the entire\\n\\ntower, which totaled over $1.4 million. MTI filed a claim for coverage with its\\n\\ninsurer, Wausau, under the Policy. After Wausau declined to provide coverage, MTI\\n\\ndirectly negotiated a settlement of $350,000 with WFEC. The balance of the tower\\n\\nreplacement cost was borne by WFEC’s insurer. MTI then sought recoupment of its\\n\\nsettlement amount from Wausau.\\n\\n The parties agree that the Policy was active at the time of the incident.\\n\\nWausau denied coverage under two exclusions. Those provisions bar coverage for:\\n\\n j. Damage To Property\\n\\n “Property damage” to:\\n ....\\n\\n (5) That particular part of real property on which you or any contractors\\n or subcontractors working directly or indirectly on your behalf are\\n performing operations, if the “property damage” arises out of those\\n operations; or\\n\\n (6) That particular part of any property that must be restored, repaired or\\n replaced because “your work” was incorrectly performed on it.\\n\\n MTI eventually filed suit against Wausau in Oklahoma state court for breach\\n\\nof contract. Wausau removed the case to federal court. On Wausau’s motion for\\n\\nsummary judgment, the district court held that the events described fell within the\\n\\nscope of both exclusion j(5) and j(6), and entered judgment in favor of Wausau. MTI\\n\\ntimely appealed.\\n\\n\\n 4\\n\\f II\\n\\n We review a district court’s grant of summary judgment de novo. Greystone\\n\\nConstr., Inc. v. Nat’l Fire & Marine Ins. Co., 661 F.3d 1272, 1277 (10th Cir. 2011),\\n\\nas amended on reh’g in part (Dec. 23, 2011). Summary judgment is appropriate only\\n\\nif there is no genuine issue of material fact and the moving party is entitled to\\n\\njudgment as a matter of law. Id. We also review a district court’s interpretation of\\n\\nstate contract law de novo. City of Wichita v. Sw. Bell Tel. Co., 24 F.3d 1282, 1286\\n\\n(10th Cir. 1994).\\n\\n Because this is a diversity action, we “apply the substantive law of the forum\\n\\nstate.” Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241,\\n\\n1255 (10th Cir. 2005). The parties agree that MTI’s claim is governed by Oklahoma\\n\\ncontract law, and that there are no binding decisions on this precise issue from the\\n\\nstate courts. We accordingly seek to predict how the Oklahoma Supreme Court\\n\\nwould rule. See Carl v. City of Overland Park, 65 F.3d 866, 872 (10th Cir. 1995).\\n\\n A\\n\\n Under Oklahoma law, “[w]hen addressing a dispute concerning the language\\n\\nof an insurance policy our first step is to determine as a matter of law whether the\\n\\npolicy language at issue is ambiguous.” Cranfill v. Aetna Life Ins. Co., 49 P.3d 703,\\n\\n706 (Okla. 2002). A provision is ambiguous if it is facially susceptible to two\\n\\ninterpretations, considered from the standpoint of a reasonably prudent layperson. Id.\\n\\nIf the language is not ambiguous, “we accept the language in its plain, ordinary and\\n\\npopular sense.” Id.\\n\\n 5\\n\\f Our initial inquiry is thus whether exclusions j(5) and j(6) are ambiguous.\\n\\nExclusion j(5) excludes coverage for property damage to “[t]hat particular part . . . on\\n\\nwhich you . . . are performing operations, if the ‘property damage’ arises out of those\\n\\noperations.” Similarly, exclusion j(6) excludes property damage to “[t]hat particular\\n\\npart of any property that must be restored, repaired or replaced because ‘your work’\\n\\nwas incorrectly performed on it.” The key phrase for this appeal is “that particular\\n\\npart.”\\n\\n Although the Oklahoma Supreme Court has not explicitly addressed this\\n\\nlanguage, these specific exclusions have received inconsistent treatment from a\\n\\nnumber of other state and federal courts. See, e.g., Roaring Lion, LLC v. Nautilus\\n\\nIns. Co., No. CV 11-2-M-DWM-JCL, 2011 WL 3956132, at *5-7 (D. Mont. July 15,\\n\\n2011) (unpublished) (noting the varied interpretations of these exclusions). The fact\\n\\nthat jurisdictions have differed in their evaluation of terms does not, however,\\n\\nestablish that the language in question is necessarily ambiguous. BP Am., Inc. v.\\n\\nState Auto Prop. & Cas. Ins. Co., 148 P.3d 832, 836 (Okla. 2005), as corrected (Oct.\\n\\n30, 2006).\\n\\n As several courts have explained, “that particular part” is narrowing language.\\n\\nSee Fortney & Weygandt, Inc. v. Am. Mfrs. Mut. Ins. Co., 595 F.3d 308, 311 (6th\\n\\nCir. 2010) (describing the words “that particular part” as “trebly restrictive, straining\\n\\nto the point of awkwardness to make clear that the exclusion applies only to building\\n\\nparts on which defective work was performed, and not to the building generally”);\\n\\nMid-Continent Cas. Co. v. JHP Dev., Inc., 557 F.3d 207, 215 (5th Cir. 2009) (noting\\n\\n 6\\n\\f“[t]he narrowing ‘that particular part’ language”); Columbia Mut. Ins. Co. v. Schauf,\\n\\n967 S.W.2d 74, 80 (Mo. 1998) (“By using the words particular part, the provision\\n\\nevidences the intent to narrow the scope of the exclusion as much as possible.”\\n\\n(emphasis omitted)); ACUITY v. Burd & Smith Constr., Inc., 721 N.W.2d 33, 41\\n\\n(N.D. 2006) (pointing to “the limiting language ‘particular part of real property’”);\\n\\nGlob. Modular, Inc. v. Kadena Pac., Inc., 222 Cal. Rptr. 3d 819, 829 (Cal. Ct. App.\\n\\n2017) (holding that “the phrase is intended to be a narrowing element, one that limits\\n\\nthe provision’s application to a distinct part of a construction project”). These courts\\n\\nhave thus determined the scope of coverage by looking to the “distinct component\\n\\nparts” on which an insured conducts operations. Mid-Continent, 557 F.3d at 217.\\n\\n Several of these cases are instructive. In Mid-Continent, the Fifth Circuit held\\n\\nthat exclusion j(6) did not bar coverage for damage to interior work caused by the\\n\\nfailure to properly water seal exterior finishes and retaining walls because “[t]he\\n\\nexterior finishes and retaining walls were distinct component parts that were each the\\n\\nsubject of separate construction processes and are severable from the” interior\\n\\ncomponents. Id. Similarly, in Fortney & Weygandt, the Sixth Circuit concluded that\\n\\nexclusion j(6) did not bar coverage for a restaurant that had to be completely rebuilt\\n\\ndue to faulty foundation work by the insured. 595 F.3d at 309-11. In ACUITY, the\\n\\nNorth Dakota Supreme Court held that a contractor hired to do work on a roof could\\n\\nrecover for damage to the interior of an apartment building caused by defective work\\n\\non the roof. 721 N.W.2d at 42. And in Shauf, the Missouri Supreme Court\\n\\nconcluded that only kitchen cabinets were excluded when a machine being used on\\n\\n 7\\n\\fthose cabinets caused a fire that resulted in damage throughout a home. 967 S.W.2d\\n\\nat 76, 81.\\n\\n Other courts have adopted a broader reading. For example, in William\\n\\nCrawford, Inc. v. Travelers Ins. Co., 838 F. Supp. 157 (S.D.N.Y. 1993), the court\\n\\nrejected the argument that “(j)(5) only excludes coverage for the damage to that\\n\\nspecific part of the apartment on which [the insured] was actually doing work when\\n\\nthe accident occurred,” instead holding that damage to the entire apartment was\\n\\nexcluded. Id. at 158. Similarly, in Jet Line Services, Inc. v. American Employers\\n\\nIns. Co., 537 N.E.2d 107 (Mass. 1989), the court remarked that “whether at the time\\n\\nof the property damage an employee of the insured is or is not in one area or another\\n\\nof the property on which the insured has agreed to perform operations is not\\n\\nsignificant to the coverage question.” Id. at 111.\\n\\n Under Oklahoma law, it is the responsibility of the insurer desiring to limit\\n\\nliability to employ clear language in the contract. Haworth v. Jantzen, 172 P.3d 193,\\n\\n197 (Okla. 2006). Wausau has failed to do so in this case. The phrase “that\\n\\nparticular part” could be read to refer solely to the direct object on which the insured\\n\\nwas operating. Alternatively, it could apply to those parts of the project directly\\n\\nimpacted by the insured party’s work. We agree with those courts that have held the\\n\\nformer interpretation is a reasonable one, although we acknowledge that the latter is\\n\\nalso reasonable. Because both readings are permissible, the exclusions are facially\\n\\nambiguous. Cranfill, 49 P.3d at 706.\\n\\n\\n\\n 8\\n\\f B\\n\\n “If the language is ambiguous, we apply well-settled rules of construction to\\n\\ndetermine the meaning of the ambiguous language.” Id. Specifically, it is our\\n\\nmandate to “construe the policy to give a reasonable effect to all of its provisions,\\n\\nand we liberally construe words of inclusion in favor of the insured and strictly\\n\\nconstrue words of exclusion against the insurer.” Id. (citation omitted); see also\\n\\nDodson v. St. Paul Ins. Co., 812 P.2d 372, 377 (Okla. 1991) (“In case of doubt,\\n\\nexclusions exempting certain specified risks are construed strictly against the\\n\\ninsurer.”).\\n\\n Because the exclusions are ambiguous, they must be strictly and narrowly\\n\\nconstrued in a manner favorable to the insured party. Haworth, 172 P.3d at 197. “In\\n\\nconstruing an ambiguity or uncertainty against the insurer and in favor of the insured,\\n\\nOklahoma looks to the objectively reasonable expectations of the insured to fashion a\\n\\nremedy.” Id. Further, “an interpretation which makes a contract fair and reasonable\\n\\nis selected over that which yields a harsh or unreasonable result.” Max True\\n\\nPlastering Co. v. U.S. Fid. & Guar. Co., 912 P.2d 861, 865 (Okla. 1996). In this\\n\\ncase, interpreting “that particular part” to refer to the distinct components upon which\\n\\nwork is performed best comports with these rules of interpretation.\\n\\n Even under this definition, determining the “particular part” on which an\\n\\ninsured works “will vary with the facts and circumstances of each particular case.”\\n\\nVinsant Elec. Contractors v. Aetna Cas. & Sur. Co., 530 S.W.2d 76, 77 (Tenn. 1975).\\n\\nIn some instances, a larger unit will properly be considered the particular part. See,\\n\\n 9\\n\\fe.g., Jet Line Servs., 537 N.E.2d at 111 (concluding exclusion j(5) barred coverage\\n\\nfor entire fuel tank rather than only the bottom portion of the tank because insured\\n\\n“was retained to clean the entire tank, and it was the entire tank on which operations\\n\\nwere being performed within the meaning of the policy language”). In some cases,\\n\\nan entire structure may qualify. For example, several cases have held that the\\n\\nexclusions so apply when an insured was hired to raise the entire structure. See, e.g.,\\n\\nLafayette Ins. Co. v. Peerboom, 813 F. Supp. 2d 823, 834 (S.D. Miss. 2011); Grinnell\\n\\nMut. Reinsurance Co. v. Lynne, 686 N.W.2d 118, 125 (N.D. 2004).\\n\\n As applied to the facts of this case, we conclude the “particular part” on which\\n\\nMTI was “performing operations” and upon which work “was incorrectly performed”\\n\\nshould reasonably be understood as the anchor bolts. Those bolts constitute “distinct\\n\\ncomponent parts” of the tower, analogous to items like “interior drywall, stud\\n\\nframing, electrical wiring, and wood flooring.” Mid-Continent, 557 F.3d at 217.\\n\\nMTI performed work incorrectly by removing them without promptly replacing them\\n\\nor bracing the structure. We further conclude it is objectively reasonable that MTI\\n\\nwould expect coverage for the cost of replacing the entire tower, including all of its\\n\\noperational elements, given the ambiguous language of exclusions j(5) and j(6).\\n\\n C\\n\\n Contrary to Wausau’s assertion, interpreting the Policy in this manner does not\\n\\nconvert it into a performance bond. See generally Black & Veatch Corp. v. Aspen\\n\\nIns. (Uk) Ltd, 882 F.3d 952, 969 (10th Cir. 2018) (“Both insurance policies and\\n\\nperformance bonds are used to spread risk, but they differ in fundamental ways. An\\n\\n 10\\n\\finsurance policy spreads the contractor’s risk. A performance bond guarantees\\n\\ncompletion of the contract upon the contractor’s default.”). In Dodson, the\\n\\nOklahoma Supreme Court, interpreting a different policy provision, noted that it\\n\\nwould be inappropriate to “effectively convert [a] policy into a performance bond or\\n\\nguarantee of contractual performance” by reading a policy to cover “the repair and\\n\\nreplacement of the insured’s own faulty workmanship.” 812 P.2d at 378 (quotation\\n\\nomitted). But that concern is not at issue here. MTI is not requesting that Wausau\\n\\ncover the cost of replacing the anchor bolts, which would be the heart of any faulty\\n\\nworkmanship claim. The Dodson decision recognized this distinction, stating that a\\n\\npolicy would provide coverage if the insured’s faulty workmanship “results in\\n\\ndamage to property other than the insured’s work or product.” Id. (quotation\\n\\nomitted). The monetary values at issue underline this point. MTI agreed to complete\\n\\ncertain work for $46,273. A performance bond for such a project would not likely\\n\\nresult in liability of over $1.4 million.\\n\\n Similarly, we are not persuaded by Wausau’s argument that the Policy\\n\\ncontains an implied “business risk exclusion” that would otherwise override the\\n\\nexpress language. Absent a violation of public policy, businesses are free to contract\\n\\nto their preferred degree of risk embodied by the precise terms by which they choose\\n\\nto articulate the insurance relationship. See generally Siloam Springs Hotel, LLC v.\\n\\nCentury Sur. Co., 392 P.3d 262, 268 (Okla. 2017). Oklahoma courts do not, as a\\n\\nmatter of course, read broad business risk exclusions into contracts, and this court\\n\\nwill not do so when it would override the express language of the contract. See Mid-\\n\\n 11\\n\\fContinent, 557 F.3d at 216 (dismissing similar argument because “whether there is\\n\\ncoverage in a particular case depends on the language contained in the policy at\\n\\nissue”).\\n\\n Finally, we reject Wausau’s contention that this court has previously decided\\n\\nthe issue presented. Our court has considered these exclusions, albeit under Kansas\\n\\nlaw. See Advantage Homebuilding, LLC v. Maryland Cas. Co., 470 F.3d 1003 (10th\\n\\nCir. 2006). In that case, we held that exclusions j(5) and j(6) apply when property\\n\\ndamage occurs while the insured’s work is ongoing regardless of when the damage is\\n\\ndiscovered. Id. at 1010-12. Wausau focuses on two sentences of that opinion. We\\n\\nstated that exclusion j(5) applies “whenever property damage arises out of the work\\n\\nof the insured, its contractors, or its subcontractors while performing operations.” Id.\\n\\nat 1011 (quotation and italics omitted). We also stated that exclusion j(6) “was\\n\\nintended to exclude ‘property damage’ that directly or consequentially occurs from\\n\\nthe faulty workmanship of the insured.” Id. at 1012.\\n\\n But Advantage did not address the meaning of the phrase “that particular part.”\\n\\nIt had no occasion to do so because the insured there contracted to build entire\\n\\nhomes. Id. at 1009. Accordingly, any statement made in Advantage as to that\\n\\nquestion would constitute dicta. And as we have previously noted, dicta, “being\\n\\nperipheral, may not have received the full and careful consideration of the court that\\n\\nuttered it.” OXY USA, Inc. v. Babbitt, 230 F.3d 1178, 1184 (10th Cir. 2000)\\n\\n(quotation omitted). Further, Wausau’s argument based on Advantage plainly goes\\n\\ntoo far. If, for example, portions of Tower 1 broke free during the windstorm and\\n\\n 12\\n\\fdestroyed nearby homes, that damage would fit within the description offered in\\n\\nAdvantage. 470 F.3d at 1011, 1012. But there is no argument to be made that nearby\\n\\nhomes would qualify as “that particular part” of the property on which MTI was\\n\\nworking.\\n\\n III\\n\\n For the forgoing reasons, we REVERSE the district court’s grant of summary\\n\\njudgment in favor of Wausau and remand for further proceedings construing the\\n\\nambiguous exclusions in favor of MTI.\\n\\n\\n\\n\\n 13\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":389,"cells":{"id":{"kind":"number","value":4585307,"string":"4,585,307"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee, v. Troy A. BONG, Defendant - Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Bong"},"decision_date":{"kind":"string","value":"2019-01-28"},"docket_number":{"kind":"string","value":"16-3323"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Briscoe, Kelly, Bacharach\", \"parties\": \"\", \"opinions\": [{\"author\": \"BRISCOE, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS January 28, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n UNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v. No. 16-3323\\n\\n TROY A. BONG,\\n\\n Defendant - Appellant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Kansas\\n (D.C. Nos. 6:16-CV-01088-JTM and 6:13-CR-10004-JTM-1)\\n _________________________________\\n\\nJosh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public\\nDefender, with him on the briefs), Office of the Federal Public Defender for the District\\nof Colorado, Denver, Colorado, appearing for Appellant.\\n\\nJared S. Maag, Assistant United States Attorney (Thomas E. Beall, United States\\nAttorney, with him on the briefs), Office of the United States Attorney for the District of\\nKansas, Topeka, Kansas, appearing for Appellee.\\n _________________________________\\n\\nBefore BRISCOE, KELLY, and BACHARACH, Circuit Judges.\\n _________________________________\\n\\nBRISCOE, Circuit Judge.\\n _________________________________\\n\\n Defendant Troy Bong, convicted in 2013 of being a felon in possession of a\\n\\nfirearm and sentenced to a term of imprisonment of 293 months, appeals from the\\n\\ndistrict court’s denial of his motion to vacate, set aside, or correct sentence pursuant\\n\\fto 28 U.S.C. § 2255. The district court granted Bong a certificate of appealability\\n\\n(COA) on Bong’s claims that he was improperly sentenced under the Armed Career\\n\\nCriminal Act (ACCA) and that his trial and appellate counsel were ineffective for\\n\\nfailing to challenge the ACCA sentencing. We subsequently granted Bong a COA as\\n\\nto two additional issues: (1) whether his trial counsel was ineffective for failing to\\n\\ninvestigate the facts of the underlying traffic stop, Bong’s resulting arrest, and\\n\\nBong’s alleged possession of a firearm; and (2) whether the prosecution suppressed\\n\\nany available video recordings of his stop and arrest.\\n\\n Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we agree with Bong that\\n\\nthe district court erred in treating his prior Kansas state convictions for robbery and\\n\\naggravated robbery as “violent felonies” under the ACCA. Consequently, we remand\\n\\nto the district court for consideration of whether Bong’s remaining prior convictions\\n\\nare sufficient to support his sentence under the ACCA. As for Bong’s ineffective\\n\\nassistance of trial counsel claims, we affirm in part, reverse in part, and remand for\\n\\nfurther proceedings. Lastly, as to Bong’s prosecutorial misconduct claim, we reverse\\n\\nand remand for further proceedings.\\n\\n I\\n\\n a) The underlying facts of Bong’s case\\n\\n In an unpublished order and judgment issued in 2014, we addressed Bong’s\\n\\ndirect appeal and summarized the underlying facts of his case:\\n\\n On December 22, 2012, Officers [Robert] Thatcher and [Joseph]\\n Springob of the Wichita Police Department were parked outside a house\\n that was the subject of a drug investigation. The officers observed a car\\n\\n 2\\n\\fleave the target house and followed the vehicle. The driver of the\\nvehicle failed to activate the car’s turn signal 100 feet before an\\nintersection. Based on this traffic violation, the officers initiated a\\ntraffic stop. Officer Springob approached the driver’s side of the car,\\nwhile Officer Thatcher approached the passenger side. A woman, later\\nidentified as Mr. Bong’s wife, was driving the car. Mr. Bong was in the\\nfront passenger seat.\\n Officer Thatcher used his flashlight to look into the passenger\\nside of the vehicle as he approached. Officer Thatcher testified Mr.\\nBong refused to make eye contact, instead staring straight ahead.\\nOfficer Thatcher thought Mr. Bong looked familiar, prompting him to\\nask for Mr. Bong’s identification. Mr. Bong opened the passenger door\\nto hand Officer Thatcher his identification. As Mr. Bong opened the\\ndoor, Officer Thatcher noticed a cigarette pack between the passenger\\nseat and the door. Officer Thatcher found this suspicious because in his\\nexperience people attempting to hide illegal substances often drop them\\nbetween the seat and door.\\n After examining Mr. Bong’s identification, Officer Thatcher\\nrecalled he had previously arrested Mr. Bong on drug, firearms, and\\nparole violation charges. Officer Thatcher asked Mr. Bong if he was\\nstill on parole, but Mr. Bong refused to respond. According to Officer\\nThatcher, Mr. Bong began to exhibit signs of nervousness—heavy\\nbreathing, sweating, and refusal to acknowledge the officer. Because\\nOfficer Thatcher’s prior arrest of Mr. Bong had involved a firearm, the\\nofficer became concerned for his and Officer Springob’s safety. Officer\\nThatcher then asked Mr. Bong to exit the vehicle. Mr. Bong initially\\nrefused to respond, but he eventually exited the vehicle after Officer\\nThatcher repeated his order several times.\\n When Mr. Bong stepped out of the vehicle, Officer Thatcher\\nnoticed he was standing so that the right side of his body was turned\\naway. Officer Thatcher also observed a knife clipped into one of the\\nfront pockets of Mr. Bong’s jacket. Officer Thatcher removed the knife\\nfrom Mr. Bong’s pocket and told him to put his hands on top of the car.\\nHe then informed Mr. Bong that he was going to perform a patdown for\\nweapons. According to Officer Thatcher, Mr. Bong hesitated, but\\neventually put his hands on the top of the car.\\n Officer Thatcher reached up to place his hands on top of Mr.\\nBong’s hands on the car roof. As he did so, Mr. Bong attempted to back\\naway from the car and evade Officer Thatcher. Because he feared Mr.\\nBong might have a weapon, Officer Thatcher attempted to maintain\\ncontrol of Mr. Bong’s hands. The two struggled briefly, at which point\\nOfficer Thatcher tried to throw Mr. Bong to the ground while keeping\\ncontrol of his hands. Both men fell to the ground, still struggling. As\\n\\n 3\\n\\f Mr. Bong attempted to rise, Officer Thatcher kicked him approximately\\n three times in the abdomen in an attempt to knock him back down. At\\n that point, Officer Thatcher observed a black object resembling a\\n firearm fall to the ground. He immediately yelled “gun, gun!” Aplt.\\n Appx. at 93.\\n In response to Officer Thatcher’s shout, Officer Springob entered\\n the fray and knocked Mr. Bong to the ground. The officers were able to\\n subdue Mr. Bong and place him in handcuffs. After the officers\\n restrained Mr. Bong, they found a firearm on the ground beneath him.\\n\\nUnited States v. Bong, 596 F. App’x 607, 608–09 (10th Cir. 2014) (Bong I).\\n\\n b) Bong’s trial proceedings and sentencing\\n\\n On January 8, 2013, a federal grand jury indicted Bong on one count of being\\n\\na felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Bong “moved\\n\\nto suppress the evidence obtained during the traffic stop and his arrest, arguing it was\\n\\nobtained in violation of his Fourth Amendment rights.” 596 F. App’x at 609. Bong\\n\\n“acknowledged the officers had reasonable suspicion to initiate an investigative\\n\\ntraffic stop on the basis of the observed traffic violation,” but nevertheless “argued\\n\\nthe scope of the detention following the traffic stop and the force used by the officers\\n\\nwas unreasonable.” Id. “The district court expressed concern about the level of force\\n\\nused by the officers, but it ultimately concluded Officer Thatcher’s actions were\\n\\njustified under the circumstances” and thus “denied [the] motion to suppress.” Id.\\n\\n “The case proceeded to trial,” where the “Government advanced the theory\\n\\nthat . . . Bong dropped the gun during the scuffle with the officers.” Id. “Bong’s\\n\\ndefense was that another man, Jeremy Fisher, had dropped the gun where it was\\n\\nfound and the traffic stop and subsequent scuffle only coincidentally occurred at the\\n\\n\\n\\n 4\\n\\fsame location . . . Fisher had dropped the gun.” Id. At the conclusion of the\\n\\nevidence, the jury convicted Bong of the felon-in-possession charge.\\n\\n The presentence investigation report (PSR) applied a base offense level of 24.\\n\\nBut the PSR concluded that Bong “ha[d] at least three prior convictions for a violent\\n\\nfelony or serious drug offense, or both, which were committed on different\\n\\noccasions” and was therefore “an armed career criminal and subject to an enhanced\\n\\nsentence under the provisions of 18 U.S.C. § 924(e).” ROA, Vol. 2 at 11.\\n\\nConsequently, the PSR applied an offense level of 33 pursuant to U.S.S.G. § 4B1.4.\\n\\nThe PSR in turn concluded that Bong’s total criminal history score was 31, which\\n\\nresulted in a criminal history category of VI. Together, the total offense level of 33\\n\\nand the criminal history category of VI resulted in an advisory sentencing guidelines\\n\\nrange of 235 to 293 months.\\n\\n Bong did not file objections to the PSR, but did file a sentencing memorandum\\n\\nasking the district court to vary downward and impose a sentence of 187 months.\\n\\nThe district court denied that request and sentenced Bong to a term of imprisonment\\n\\nof 293 months.\\n\\n c) Bong’s direct appeal\\n\\n Bong filed a direct appeal challenging the district court’s denial of his motion\\n\\nto suppress. Bong also challenged the trial court’s admission at trial of two sets of\\n\\nstatements. On December 18, 2014, we issued an unpublished order and judgment\\n\\nrejecting Bong’s arguments and affirming Bong’s conviction. Bong I, 596 F. App’x\\n\\nat 614.\\n\\n 5\\n\\f Bong filed a petition for writ of certiorari with the Supreme Court. His\\n\\npetition was denied on April 20, 2015. Bong v. United States, 135 S. Ct. 1873\\n\\n(2015).\\n\\n d) Bong’s § 2255 proceedings\\n\\n On April 6, 2016, Bong filed a pro se motion to vacate, set aside, or correct\\n\\nsentence pursuant to 28 U.S.C. § 2255 asserting twenty-two separate grounds for\\n\\nrelief. Of relevance here, Ground One of the motion argued that in light of the\\n\\nSupreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015)\\n\\n(Johnson II), Bong’s prior convictions did not qualify as “violent felonies” or “crimes\\n\\nof violence” for enhanced sentencing purposes because they did not require the use,\\n\\nattempted use, or threatened use of physical force. ROA, Vol. 1 at 633. Ground Two\\n\\nalleged, in pertinent part, that Bong’s appellate counsel was ineffective for failing to\\n\\n“raise, brief and argue the . . . fast developing legal issues regarding [the] Armed\\n\\nCareer Criminal Act and enhanced sentence.” Id. at 634. Ground Twenty One of\\n\\nBong’s motion alleged that his trial counsel was ineffective for failing to challenge\\n\\nthe PSR or the convictions used to qualify Bong for the ACCA enhancement. Id.\\n\\nat 655.\\n\\n Bong subsequently moved for appointment of counsel. The district court\\n\\ngranted the motion, but solely for purposes of counsel assisting Bong “in obtaining\\n\\nrelief under Johnson [II].” Dist. Ct. Docket No. 74 at 2. Bong’s appointed counsel\\n\\nmoved to amend the § 2255 motion. In support, Bong’s counsel argued that, based\\n\\non the Supreme Court’s decision in Mathis v. United States, 136 S. Ct. 2243 (2016),\\n\\n 6\\n\\fit was “clear that . . . Bong’s 1988 Kansas burglary conviction should not, and cannot\\n\\nbe used as a predicate ‘violent felony’ for an Armed Career Criminal Act\\n\\nenhancement and it was error to be included as such by the [trial] Court,” and in turn\\n\\n“it was ineffective for his trial and appellate counsel to fail to raise this issue at the\\n\\ntime of his original sentencing and appeal.” ROA, Vol. 1 at 783. The government\\n\\nfiled a response arguing that Mathis did not apply retroactively to cases on collateral\\n\\nreview. Id. at 790. Bong’s appointed counsel in turn filed a reply brief challenging\\n\\nall of Bong’s prior convictions used to establish his ACCA status.\\n\\n On September 22, 2016, Bong filed a pro se pleading entitled “TROY\\n\\nBONG’S REPLY TO PLAINTIFF’S RESPONSE TO MOTION TO VACATE, SET\\n\\nASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U. S. C. 2255.” Id. at 831.\\n\\nIn that pro se pleading, Bong alleged, in pertinent part, that he submitted a request\\n\\nunder the Kansas Open Records Act (KORA), Kan. Stat. Ann. §§ 45-215 to 45-223,\\n\\nand that the City of Wichita, in response to his request, stated that “2 AXON videos\\n\\n(patrol car recording equipment) exist” from his stop and arrest “that are 18 minutes\\n\\nand 48 seconds long.” Id. at 884. Bong further alleged that “due to [his]\\n\\nincarceration he [wa]s unable to purchase or receive copies of these videos,” but that\\n\\nthe videos “w[ould] show that [he] never resisted or attempted to escape before\\n\\nThatcher threw him to the ground and began using force on him.” Id. Thus, Bong\\n\\nargued, “these videos constitute impeaching evidence which also show that the\\n\\nofficers gave perjured testimony at trial upon which the jury relied to convict [him].”\\n\\nId.\\n\\n 7\\n\\f On October 28, 2016, the district court issued a memorandum and order\\n\\ndenying Bong’s § 2255 motion. The district court rejected Bong’s Johnson II-based\\n\\narguments, noting that he “has at least three convictions under Kansas law for\\n\\nrobbery or aggravated robbery” that “qualify as violent felonies under the ACCA.”\\n\\nId. at 1051. More specifically, the district court noted that Bong “was convicted in a\\n\\nKansas district court on May 29, 1990, of three counts of robbery, three counts of\\n\\naggravated robbery, and one count of attempted robbery.” Id. at 1052. These\\n\\noffenses, the district court noted, “occurred on March 17, 1990; March 22, 1990;\\n\\nMarch 25, 1990 (two offenses); March 29, 1990; April 3, 1990; and April 6, 1990.”\\n\\nId. The district court in turn noted that “[a]t the time of the offenses, Kansas law\\n\\ndefined robbery as ‘the taking of property from the person or presence of another by\\n\\nthreat of bodily harm to his person or the person of another or by force,’” id. (quoting\\n\\nKan. Stat. Ann. § 21-3426 (1970)), and “[a]ggravated robbery was ‘a robbery\\n\\ncommitted by a person who is armed with a dangerous weapon or who inflicts bodily\\n\\nharm on any person in the course of such robbery.’” Id. (quoting Kan. Stat. Ann.\\n\\n§ 21-3427 (1970)). The district court thus concluded that “the elements of robbery\\n\\nunder Kansas law incorporate the ‘physical force’ necessary to constitute a violent\\n\\noffense under § 924(e)(2)(B).” Id. The district court also concluded that “[t]he\\n\\nelement of force or threat of bodily harm in Kansas robbery materially distinguishes\\n\\nthis offense from Johnson [II]” because “[t]he Kansas element of the intentional use\\n\\nof force or threat of bodily harm necessarily contemplates force capable of causing\\n\\npain or injury, placing this offense squarely within the violent felonies Congress had\\n\\n 8\\n\\fin mind in adopting the ACCA.” Id. at 1053. In addition, the district court noted that\\n\\nBong cited “no Kansas Supreme Court case finding the force element of robbery to\\n\\nbe satisfied by evidence of ‘any physical contact’ with the victim” and, “[t]o the\\n\\ncontrary, Kansas cases characterize robbery as a taking accomplished by violence or\\n\\nintimidation.” Id. at 1053-54. Lastly, the district court noted that Bong’s “seven or\\n\\nso robbery offenses (including aggravated robbery) were largely consolidated for\\n\\ncharging and sentencing,” but “occurred (with one exception) on different dates, and\\n\\nwere thus ‘committed on occasions different from one another.’” Id. at 1054\\n\\n(quoting United States v. Tisdale, 921 F.2d 1095, 1098 (10th Cir. 1990)).\\n\\n The district court rejected all of the other claims that Bong asserted, including\\n\\nthe various ineffective assistance of counsel and appellate counsel claims. In\\n\\naddition, the district court addressed Bong’s pro se reply brief in the following\\n\\nmanner:\\n\\n Defendant has filed a 158-page pro se Reply Brief (Dkt. 96) that\\n attempts to raise a multitude of claims in addition to those set forth in\\n the original or amended § 2255 motions. To the extent the Reply\\n attempts to raise new claims, those claims are barred because they have\\n been raised outside the applicable one-year statute of limitations. See\\n United States v. Guerrero, 488 F.3d 1313, 1316 (10th Cir. 2007)\\n (“When a § 2255 movant seeks to amend his pleading to include a new\\n claim, we will only entertain this claim if the amendment is made within\\n the one-year limit set by AEDPA.”). To the extent the Reply raises new\\n arguments (but not new claims) that were not set forth in his initial or\\n amended § 2255 motions, those arguments are considered waived. See\\n United States v. Herget, [585 F. App’x 948, 950] (10th Cir. 2014).\\n Nevertheless, the court has addressed the merits of the arguments\\n contained in the Reply Brief to the extent feasible.\\n\\nId. at 1047 n.1.\\n\\n\\n 9\\n\\f Lastly, the district court granted Bong a COA with respect to the issues raised\\n\\nin his § 2255 motion concerning his “classification as an armed career criminal and\\n\\nthe effectiveness of counsel with respect to that classification.” Id. at 1072. The\\n\\ndistrict court denied Bong a COA on the remaining issues asserted in his § 2255\\n\\nmotion. Id. at 1073.\\n\\n Bong filed a timely notice of appeal. He has since filed a motion to expand the\\n\\nCOA to include additional issues.\\n\\n II\\n\\n We begin by focusing on the ACCA-related issues on which the district court\\n\\ngranted Bong a COA. As outlined below, we conclude that Bong’s Kansas\\n\\nconvictions for robbery and aggravated robbery do not constitute “violent felonies”\\n\\nfor purposes of the ACCA.\\n\\n Standards of review\\n\\n “A motion to vacate a sentence under 28 U.S.C. § 2255 is generally the\\n\\nexclusive remedy for a federal prisoner seeking to attack the legality of detention.”\\n\\nUnited States v. Harris, 844 F.3d 1260, 1263 (10th Cir. 2017) (quotation marks and\\n\\nbrackets omitted). We review de novo the district court’s rulings on a § 2255 motion\\n\\nand its findings of fact for clear error. Id.\\n\\n “Whether a prior conviction satisfies the ACCA’s violent felony definition is a\\n\\nlegal question we review de novo.” United States v. Titties, 852 F.3d 1257, 1263\\n\\n(10th Cir. 2017).\\n\\n\\n\\n 10\\n\\f Was Bong properly sentenced under the ACCA?\\n\\n “[T]he ACCA mandates an enhanced sentence of imprisonment of not less\\n\\nthan 15 years when the violator of § 922(g) has ‘three previous convictions . . . for a\\n\\nviolent felony.’” United States v. Garcia, 877 F.3d 944, 946 (10th Cir. 2017)\\n\\n(quoting 18 U.S.C. § 924(e)(1)). The ACCA defines a “violent felony” as “any crime\\n\\npunishable by imprisonment for a term exceeding one year” that falls within the\\n\\nscope of one of three enumerated clauses: (1) the elements clause, which states: “has\\n\\nas an element the use, attempted use, or threatened use of physical force against the\\n\\nperson of another,” § 924(e)(2)(B)(i); (2) the enumerated offenses clause, which\\n\\nincludes any crime that “is a categorical match to the generic offenses of ‘burglary,\\n\\narson, or extortion,’” Harris, 844 F.3d at 1263 (quoting § 924(e)(2)(B)(ii)); or (3) the\\n\\nresidual clause, which includes any crime that “otherwise involves conduct that\\n\\npresents a serious potential risk of physical injury to another.” 18 U.S.C.\\n\\n§ 924(e)(2)(B)(ii).\\n\\n In Johnson II, the Supreme Court held that the ACCA’s residual clause was\\n\\nunconstitutionally vague and “that imposing an increased sentence under the residual\\n\\nclause . . . violates the Constitution’s guarantee of due process.” 135 S. Ct. at 2563.\\n\\nThe result is that, for a prior conviction to constitute a “violent felony” under the\\n\\nACCA, it must either be one of the enumerated offenses in § 924(e)(2)(B)(ii) or it\\n\\nmust fall within the elements clause in § 924(e)(2)(B)(i). See Harris, 844 F.3d\\n\\nat 1263. In this case, it is undisputed that Bong’s prior Kansas convictions for\\n\\nrobbery and aggravated robbery do not fall within the enumerated-offenses clause\\n\\n 11\\n\\fand, thus, must fall within the elements clause in order to constitute “violent\\n\\nfelonies” for purposes of the ACCA.\\n\\n “To determine if a prior conviction qualifies as a violent felony” under the\\n\\nACCA’s elements clause, “we apply the categorical approach, focusing on the\\n\\nelements of the crime of conviction, not the underlying facts.” Harris, 844 F.3d\\n\\nat 1263 (citing Descamps v. United States, 133 S. Ct. 2276, 2283 (2013)). More\\n\\nspecifically, we must determine whether the Kansas statutes of conviction “ha[ve] as\\n\\nan element the use, attempted use, or threatened use of physical force against the\\n\\nperson of another.” See § 924(e)(2)(B)(i). “This inquiry requires application of both\\n\\nfederal law and [Kansas] state law.” Harris, 844 F.3d at 1264. “Federal law defines\\n\\nthe meaning of the phrase ‘use, attempted use, or threatened use of physical force’ in\\n\\n§ 924(e)(2)(B)(i).” Id. “And state law defines the substantive elements of the crime\\n\\nof conviction.” Id.\\n\\n The terms employed in the ACCA’s elements clause have, for the most part,\\n\\nbeen clearly defined by the Supreme Court. The term “use,” as employed in the\\n\\nACCA’s elements clause, “requires active employment” rather “than negligent or\\n\\nmerely accidental conduct.” Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). In turn, the\\n\\nterm “physical,” as employed in the ACCA’s elements clause, means “force exerted\\n\\nby and through concrete bodies—distinguishing physical force from, for example,\\n\\nintellectual force or emotional force.” Johnson v. United States, 559 U.S. 133, 138\\n\\n(2010) (Johnson I). As for the term “force,” the Court rejected the traditional\\n\\ndefinition (i.e., that force can be satisfied by even the slightest offensive touching)\\n\\n 12\\n\\fand instead held that in the context of the ACCA, the phrase “physical force” means\\n\\n“violent force”—“force capable of causing physical pain or injury to another person.”\\n\\nId. at 140. Thus, the ACCA’s elements clause refers to the active, attempted, or\\n\\nthreatened employment of violent force—force capable of causing physical pain or\\n\\ninjury—against the person of another.\\n\\n Recently, in Stokeling v. United States, 586 U.S. –, 2019 WL 189343 (2019),\\n\\nthe Supreme Court revisited the ACCA’s elements clause to determine whether a\\n\\nFlorida robbery conviction constituted a predicate offense under the ACCA. In doing\\n\\nso, the Court held “that the elements clause encompasses robbery offenses that\\n\\nrequire the criminal to overcome the victim’s resistance.” 2019 WL 189343 at *3.\\n\\nThe Court explained that “the force necessary to overcome a victim’s physical\\n\\nresistance is inherently ‘violent’ in the sense contemplated by Johnson[ I], and\\n\\n‘suggest[s] a degree of power that would not be satisfied by the merest touching.’”\\n\\nId. at *7 (quoting Johnson I, 559 U.S. at 139). “This is true,” the Court noted,\\n\\n“because robbery that must overpower a victim’s will—even a feeble or weak-willed\\n\\nvictim—necessarily involves a physical confrontation and struggle.” Id. The Court\\n\\nstated that a physical confrontation or “altercation need not cause pain or injury or\\n\\neven be prolonged” because “it is the physical contest between the criminal and the\\n\\nvictim that is itself ‘capable of causing physical pain or injury.’” Id. (quoting\\n\\nJohnson I, 559 U.S. at 140). Lastly, and significantly for purposes of our case, the\\n\\nCourt made it a point to emphasize that the “[m]ere ‘snatching of property from\\n\\nanother’ will not suffice” to constitute robbery under Florida law. Id. at *9.\\n\\n 13\\n\\f Having outlined the meaning of the ACCA’s elements clause, “[w]e now apply\\n\\nthese principles to [the Kansas] robbery statute to determine whether it ‘has as an\\n\\nelement the use, attempted use, or threatened use of physical force against the person\\n\\nof another.’” Id. (quoting § 924(e)(2)(B)(i)). In Harris, we outlined a “two-step\\n\\ninquiry” for resolving whether a state’s “robbery statute requires physical force as\\n\\nthat term is used in the ACCA.” 844 F.3d at 1264. First, “we must identify the\\n\\nminimum ‘force’ required by [the applicable state] law for the crime of robbery.” Id.\\n\\nSecond, we must “then determine if that force categorically fits the [ACCA’s]\\n\\ndefinition of physical force.” Id. (italics in original). The Supreme Court has\\n\\nemphasized “that in construing the minimum culpable conduct, such conduct only\\n\\nincludes that in which there is a ‘realistic probability, not a theoretical possibility’ the\\n\\nstate statute would apply.” Id. (quoting Moncrieffe v. Holder, 133 S. Ct. 1678, 1685\\n\\n(2013)). “Decisions from the state supreme court best indicate a ‘realistic\\n\\nprobability,’ supplemented by decisions from the intermediate-appellate courts.” Id.\\n\\n(quoting Moncrieffe, 133 S. Ct. at 1685).\\n\\n Bong’s ACCA sentence was based, in pertinent part, on three Kansas state\\n\\nrobbery convictions and three Kansas state aggravated robbery convictions, all of\\n\\nwhich occurred in April of 1990 (but were based on separate incidents). At the time\\n\\nof those convictions, the Kansas robbery statute provided as follows: “Robbery is the\\n\\ntaking of property from the person or presence of another by threat of bodily harm to\\n\\nhis person or the person of another or by force.” Kan. Stat. Ann. § 21-3426 (1988).\\n\\nAnd the Kansas aggravated robbery statute provided: “Aggravated robbery is a\\n\\n 14\\n\\frobbery committed by a person who is armed with a dangerous weapon or who\\n\\ninflicts bodily harm upon any person in the course of such robbery.” Kan. Stat. Ann.\\n\\n§ 21-3427 (1988).\\n\\n In the unpublished decision in United States v. Nicholas, 686 F. App’x 570\\n\\n(10th Cir. 2017), a two-judge panel of this court addressed whether the same Kansas\\n\\nrobbery statute required “physical force” as defined in the ACCA. In doing so, the\\n\\npanel in Nicholas “look[ed] . . . to Kansas state law to define the substantive\\n\\nelements of Kansas robbery and, in particular, the requirements of ‘force’ or ‘threat\\n\\nof bodily harm.’” Id. at 574. The panel took particular note of State v. McKinney,\\n\\n961 P.2d 1 (Kan. 1998), in which the Kansas Supreme Court reviewed the\\n\\ndefendant’s robbery conviction for purse-snatching. The robbery victim in the case\\n\\ntestified that she had cashed some checks at a bank and walked outside with a “thing\\n\\nthat [she] had the money in” when, as she was opening the door to her car, McKinney\\n\\nappeared, “pushed [her] up against a door,” “grabbed [the] thing [containing the\\n\\nmoney] . . . and took out.” 961 P.2d at 4. “McKinney told police that he had\\n\\nsnatched [the victim’s] purse from her arm, but he denied pushing her,” and he\\n\\nconsequently “argue[d] that the jury should have been instructed on theft as a lesser\\n\\nincluded offense of robbery.” Id. at 8. The Kansas Supreme Court rejected\\n\\nMcKinney’s argument, concluding that even if he snatched the victim’s purse without\\n\\npushing her, simply “snatching the purse away from [the victim] constituted the\\n\\nthreat of bodily harm, which is an element of robbery.” Id. Although the panel in\\n\\nNicholas “acknowledge[d] that many, if not most, Kansas robbery convictions will\\n\\n 15\\n\\flikely involve a greater degree of force than mere purse-snatching,” it nevertheless\\n\\nconcluded that “[i]n the context of Kansas robbery, McKinney establishes th[e]\\n\\nlowest level of culpable conduct.”1 686 F. App’x at 575.\\n\\n The panel in Nicholas in turn “conclude[d] that Kansas robbery does not\\n\\nnecessarily require the use, attempted use, or threatened use of violent force against\\n\\nthe person of another.” Id. at 576. In doing so, the panel in Nicholas noted that\\n\\n“[s]everal circuit courts have concluded that, because a state’s robbery statute may be\\n\\nviolated with minimal actual force, it does not qualify as a violent felony under the\\n\\nACCA.” Id. at 575 (citing cases from the Fourth, Eighth, and Ninth Circuits\\n\\nconstruing Arkansas, Massachusetts, Missouri and North Carolina robbery statutes).\\n\\nIn particular, the Nicholas panel noted that the Ninth Circuit in United States v.\\n\\nParnell, 818 F.3d 974, 979 (9th Cir. 2016) had held, in the context of examining a\\n\\nMassachusetts armed robbery statute, that “the snatching of a purse from a victim’s\\n\\nhand . . . does not constitute force ‘capable of causing physical pain or injury to\\n\\nanother person.’” 818 F.3d at 979 (quoting Johnson II, 559 U.S. at 140).\\n\\n Ultimately, the panel in Nicholas concluded that “the minimum force\\n\\nnecessary under Kansas law to support a robbery conviction” does not “categorically\\n\\nfit[] the definition of physical force under the ACCA.” Id. at 575. In other words,\\n\\n\\n 1\\n In reaching this conclusion, the panel in Nicholas noted that it “ha[d] not\\nidentified a general statement from Kansas courts as to the degree of force required to\\nsupport a Kansas robbery conviction.” 686 F. App’x at 576 n.5. Indeed, the panel\\nnoted that most of the Kansas cases “addressing the force element of Kansas robbery\\nhave done so in the context of determining the statute’s temporal requirements, not\\nits degree-of-force requirements.” Id.\\n 16\\n\\fthe panel held that “[b]ecause Kansas robbery does not require the use, attempted\\n\\nuse, or threatened use of violent force as defined in Johnson, it cannot serve as a\\n\\npredicate offense for purposes of the ACCA’s sentence enhancement provisions.” Id.\\n\\nat 576.\\n\\n Not surprisingly, the parties in the case before us have divergent views\\n\\nregarding Nicholas. Bong argues that we should adopt the reasoning in Nicholas\\n\\nbecause, although “not precedential, it is persuasive and applies here.” Aplt. Br.\\n\\nat 48. The government, in response, argues that Nicholas “was wrongly decided.”\\n\\nAplee. Br. at 16. To begin with, the government asserts that, “contrary to the panel’s\\n\\nnote in Nicholas that it could not identify a general statement from Kansas courts as\\n\\nto the degree of force necessary to constitute robbery,” there is in fact “sufficient\\n\\nguidance” in Kansas case law “establishing the force necessary to support a robbery\\n\\nconviction.” Aplee. Br. at 30. In particular, the government points to the following\\n\\nstatement made by the Kansas Supreme Court in State v. Aldershof, 556 P.2d 371\\n\\n(Kan. 1976):\\n\\n [T]o constitute the crime of robbery by forcibly taking money\\n from the person of its owner, it is necessary that the violence to the\\n owner must either precede or be contemporaneous with the taking of the\\n property and robbery is not committed where the thief has gained\\n peaceable possession of the property and uses no violence except to\\n resist arrest or to effect his escape.\\n\\nId. at 375. The government also cites various dictionaries for the proposition that\\n\\n“[t]he word ‘violence’ connotes more than mere physical contact.” Aplee. Br. at 30.\\n\\n\\n\\n\\n 17\\n\\fThus, the government argues, “[i]t is plain under Kansas law that gaining ‘peaceable’\\n\\npossession of property is not robbery; rather, it is theft.” Id. at 31.\\n\\n Notably, the very same argument was made by the government in Nicholas and\\n\\nthe panel in that case rejected it, stating as follows:\\n\\n The primary case relied upon by the government, State v.\\n Aldershof, 556 P.2d 371 (1976), uses the term “violence” in reference to\\n robbery while answering the question of when force must occur, not\\n what degree of force is required. Id. at 373-75. Moreover, insofar as\\n Aldershof appears to conflate “violence” with the force necessary to\\n support a robbery conviction, those concepts are later divorced in State\\n v. Peck, 703 P.2d 781 (1985). See id. at 787 (“But the jury found there\\n was no violence used in the commission of the robbery . . . . Since there\\n was no direct evidence as to violence occurring with that taking, the\\n jury acquitted Peck on the charge of aggravated robbery, and instead\\n found him guilty of simple robbery.”).\\n\\n More importantly, the McKinney court explicitly relied on\\n Aldershof in concluding that mere purse-snatching can support a\\n conviction for Kansas robbery. See McKinney, 961 P.2d at 9. We must\\n therefore reject any interpretation of Aldershof that would be\\n inconsistent with the holding in McKinney. See Jackson v. Harris, 43\\n F.2d 513, 516-17 (10th Cir. 1930) (“Where such decisions are in\\n conflict, the national courts will follow the latest settled adjudications of\\n the highest court of the state rather than the earlier ones . . . .”). In\\n doing so, we acknowledge that many, if not most, Kansas robbery\\n convictions will likely involve a greater degree of force than mere\\n purse-snatching; however, our analysis must focus on the lowest level of\\n conduct that can support a conviction under the statute. See Moncrieffe\\n v. Holder, 569 U.S. 184[, 190-91] (2013) (“Because we examine what\\n the state conviction necessarily involved, not the facts underlying the\\n case, we must presume that the conviction ‘rested upon nothing more\\n than the least of the acts’ criminalized, and then determine whether even\\n those acts [would constitute violent felonies].” (quoting Johnson [II],\\n 559 U.S. at 137) (alterations omitted)). In the context of Kansas\\n robbery, McKinney establishes that lowest level of culpable conduct.\\n\\n686 F. App’x at 575 (parallel citations omitted).\\n\\n\\n\\n 18\\n\\f The government also argues that the panel in Nicholas “simply established a\\n\\nquantum of force standard greater than that set by Johnson I.” Aplee. Br. at 32.\\n\\nMore specifically, the government argues that “the panel in Nicholas arguably gave\\n\\nlittle credit to the adjective ‘capable’ in Johnson I, in turn concluding that purse\\n\\nsnatching is simply ‘incapable’ of causing physical injury or pain to another person.”\\n\\nId. at 33. “That,” the government asserts, “is far too broad of a conclusion to reach.”\\n\\nId. According to the government, “when considering that grabbing is sufficient to\\n\\ncause physical injury, it is reasonable to conclude that purse snatching—which\\n\\nnecessarily involves grabbing—is similarly sufficient force to cause physical injury.”\\n\\nId.\\n\\n The problem with the government’s argument is that it treats “purse snatching”\\n\\nas a singular type of action when, as case law clearly demonstrates, it can be\\n\\naccomplished in a variety of ways and with varying degrees of physical force. Of\\n\\ncourse, it is easy to conceive of a particular act of purse-snatching that involves force\\n\\ncapable of causing physical harm to the victim—or, indeed, that actually causes\\n\\nphysical harm to the victim. But that was not the task faced by the panel in Nicholas\\n\\nor by us. Rather, the task is to “identify the minimum ‘force’ required by [Kansas]\\n\\nlaw for the crime of robbery.” Harris, 844 F.3d at 1264. And the panel in Nicholas\\n\\nconcluded, correctly in our view, that this minimum level of force was defined by the\\n\\nspecific act of purse-snatching that occurred in McKinney—an act that, at least\\n\\naccording to the defendant, involved the mere snatching of the purse (or whatever the\\n\\nobject was that actually contained the money) without any application of force\\n\\n 19\\n\\fdirectly to the victim, and also, importantly, without any resistance by or injury to the\\n\\nvictim. See generally State v. Warwick, 654 P.2d 403, 405 (Kan. 1982) (holding that\\n\\n“neither robbery nor aggravated robbery require bodily contact or the actual\\n\\napplication of force to the person of another as a necessary element for the\\n\\ncommission of those crimes”), abrogated on other grounds by State v. Adams, 744\\n\\nP.2d 833 (Kan. 1987). Thus, we agree with the panel in Nicholas that robbery in\\n\\nKansas can be accomplished with minimal force that falls short of the “violent force”\\n\\nrequired under the ACCA’s elements clause.\\n\\n The government also suggests that Nicholas is inconsistent with our published\\n\\nopinion in Harris. The government notes that in Harris, the “panel rejected the Ninth\\n\\nCircuit’s decision in” Parnell, but in contrast the court in Nicholas “relied heavily on\\n\\nParnell to support its conclusion that Kansas’ robbery statute runs afoul of\\n\\nJohnson I.” Aplee. Br. at 34. Contrary to the government’s suggestion, however,\\n\\nNicholas and Harris are consistent in their treatment of Parnell. Both Nicholas and\\n\\nHarris recognized that Parnell dealt with a robbery conviction under Massachusetts\\n\\nlaw and both noted that under Massachusetts law, a defendant may be convicted of\\n\\nrobbery without using violence or intimidation of any sort. Nicholas and Harris came\\n\\nto different outcomes because each case addressed a different state statute. In\\n\\nNicholas, the panel concluded that robbery under Kansas law was similar to robbery\\n\\n\\n\\n\\n 20\\n\\funder Massachusetts law, whereas the panel in Harris concluded that robbery under\\n\\nColorado law differed from robbery under Massachusetts law. 2\\n\\n In sum, we conclude that the government has failed to establish that the panel\\n\\nin Nicholas erred in concluding that “the minimum force necessary under Kansas law\\n\\nto support a robbery conviction” does not “categorically fit[] the definition of\\n\\nphysical force under the ACCA.” 686 F. App’x at 575. In turn, we adopt the\\n\\nreasoning of Nicholas and conclude that Bong’s prior Kansas convictions for robbery\\n\\ncannot serve as predicate offenses for purposes of the ACCA’s sentence enhancement\\n\\nprovisions.\\n\\n The question then becomes whether we should proceed to address the other\\n\\nconvictions that were cited in the PSR as predicate offenses, or whether we should\\n\\ninstead remand the case to the district court to determine in the first instance whether\\n\\nthose convictions are countable predicate offenses. Because the parties have briefed\\n\\nthe question of whether Bong’s Kansas state aggravated robbery convictions can\\n\\nserve as predicate offenses under the ACCA, we will proceed to address that\\n\\nquestion.\\n\\n\\n\\n 2\\n As Bong notes in his Rule 28(j) letter, the First Circuit recently concluded\\nthat a New York conviction for attempted robbery in the second degree was not a\\n“crime of violence” for purposes of the career offender guidelines because “there is a\\nrealistic probability that [the defendant’s] conviction was for attempting to commit\\nan offense for which the least of the acts that may have constituted that offense\\nincluded ‘purse snatching, per se.’” United States v. Steed, 879 F.3d 440, 450 (1st\\nCir. 2018) (quoting People v. Santiago, 405 N.Y.S.2d 572, 579 (N.Y. App. Div.\\n1978)).\\n\\n 21\\n\\f As noted, Bong has three prior convictions for violating the Kansas aggravated\\n\\nrobbery statute. At the time of his convictions, that statute provided: “Aggravated\\n\\nrobbery is a robbery committed by a person who is armed with a dangerous weapon\\n\\nor who inflicts bodily harm upon any person in the course of such robbery.” Kan.\\n\\nStat. Ann. § 21-3427 (1970). This statutory language makes clear that an aggravated\\n\\nrobbery is (a) a robbery (as defined in the Kansas robbery statute) committed by a\\n\\nperson who (b) is armed with a dangerous weapon or who inflicts bodily harm upon\\n\\nany person in the course of such robbery.3 Having concluded that robbery under\\n\\nKansas law is not a “violent crime” for purposes of the ACCA, the question remains\\n\\nwhether the second element described above is sufficient to render an aggravated\\n\\nrobbery a “violent crime.”\\n\\n In answering this question, we begin and ultimately end by focusing on\\n\\nwhether being armed with a dangerous weapon during the course of a robbery is\\n\\nsufficient to render the crime a “violent crime” for purposes of the ACCA. The\\n\\nKansas aggravated robbery statute does not define “armed,” and we have not found\\n\\nany Kansas cases expressly defining the term.4 Turning to dictionary definitions,\\n\\n\\n 3\\n It appears clear that these two alternative methods of rendering a robbery an\\n“aggravated robbery” are not elements of different offenses, but rather only different\\nmeans by which a person commits a single armed robbery offense. See Mathis 136\\nS. Ct. at 2253; State v. Brown, 401 P.3d 611, 622 (Kan. 2017) (“aggravated robbery\\ncan be committed by one who either ‘is armed with a dangerous weapon’ or ‘inflicts\\nbodily harm on any person in the course of such robbery’”).\\n 4\\n The Kansas pattern jury instructions stated that it was not necessary for the\\ndefendant to have exhibited the dangerous weapon to the victim, and that whether or\\n (Continued . . .)\\n 22\\n\\fBlack’s Law Dictionary defines “armed” as “[e]quipped with a weapon” or\\n\\n“[i]nvolving the use of a weapon.” Armed, Black’s Law Dictionary (10th ed. 2014).\\n\\nSimilarly, the Oxford English Dictionary defines “armed” as “[e]quipped with or\\n\\ncarrying a weapon or weapons (now typically firearms); involving the use of\\n\\nweaponry.” Armed, Oxford English Dictionary (online ed. 2017). Presumably, being\\n\\n“equipped” with a weapon is the same as “possessing” a weapon. In other words,\\n\\nsimple possession of a weapon, rather than actual use of a weapon, is a sufficient\\n\\nmeans of being “armed” for the purposes of the Kansas aggravated robbery statute.\\n\\nAnd that conclusion is supported by State v. Buggs, 547 P.2d 720 (Kan. 1976), where\\n\\nthe Kansas Supreme Court held that the Kansas aggravated robbery “statute requires\\n\\nonly that the robber be ‘armed with’ a dangerous weapon, not that he use it or that the\\n\\nvictim be aware of its presence.” Id. at 725.\\n\\n We in turn conclude that merely being “armed” with a weapon during the\\n\\ncourse of a robbery is not sufficient to render the crime a “violent crime” for\\n\\npurposes of the ACCA. For example, take the simple robbery that was committed in\\n\\nMcKinney—i.e., the purse-snatching. Had the defendant in that case been armed\\n\\nwith a weapon, even a concealed one, at the time of the purse-snatching, that would\\n\\nhave been sufficient to render the crime an aggravated robbery under Kansas law.\\n\\nBut, as with the simple crime of purse snatching, nothing about the defendant’s mere\\n\\npossession of a firearm (or another deadly weapon) would have necessarily caused\\n\\n\\nnot the defendant was armed with a dangerous weapon was determined from the\\nvictim’s point of view. State v. Holbrook, 932 P.2d 958, 961 (Kan. 1997).\\n 23\\n\\fthe crime to involve “the use, attempted use, or threatened use of violent force\\n\\nagainst the person of another.” § 924(e)(2)(B)(i).\\n\\n Notably, the Ninth Circuit addressed a similar question in Parnell and\\n\\nconcluded that “[t]he mere fact that an individual is armed . . . does not mean he or\\n\\nshe has used the weapon, or threatened to use it, in any way.” 818 F.3d at 980. Like\\n\\nthe Kansas aggravated robbery statute at issue here, the Massachusetts aggravated\\n\\nrobbery statute that was before the court in Parnell did “not require a weapon to be\\n\\nused or displayed, or even that the victim be aware of it.” Id. The Ninth Circuit thus\\n\\nconcluded that “[t]here is a material difference between the presence of a weapon,\\n\\nwhich produces a risk of violent force, and the actual or threatened use of such\\n\\nforce.” Id. (emphasis in original). “Only the latter,” the Ninth Circuit held, “falls\\n\\nwithin the ACCA’s force clause.”5 Id.\\n\\n To be sure, the government in this case acknowledges Parnell, but states that it\\n\\n“disagrees with this decision.” Aplee. Br. at 36 n.11. Notably, however, the\\n\\ngovernment makes no attempt to explain why Parnell’s holding on this point was\\n\\nincorrect.\\n\\n In United States v. Redrick, 841 F.3d 478 (D.C. Cir. 2016), the District of\\n\\nColumbia Circuit distinguished Parnell, but it did so on the basis that the statute of\\n\\n\\n\\n 5\\n As Bong notes in his Rule 28(j) letter, the Ninth Circuit also reached the\\nsame conclusion in a more recent case, i.e., United States v. Jones, 877 F.3d 884 (9th\\nCir. 2017) (holding that a conviction under Arizona’s armed robbery statute did not\\ncategorically qualify as a violent felony conviction under the ACCA’s force clause).\\n\\n 24\\n\\fconviction in the case before it—i.e., Maryland armed robbery—required “that the\\n\\ndefendant commit the crime with the use of a dangerous or deadly weapon.” Id.\\n\\nat 484 (italics in original). Quite clearly, had the Kansas aggravated robbery statute\\n\\nrequired the use of a dangerous or deadly weapon, then Bong’s prior aggravated\\n\\nrobbery convictions would constitute predicate offenses under the ACCA. But, as\\n\\nnoted, the Kansas aggravated robbery statute does not include this requirement. We\\n\\ntherefore conclude that the Kansas crime of aggravated robbery is not categorically a\\n\\n“violent crime” for purposes of the ACCA.\\n\\n In light of our conclusions regarding Bong’s prior Kansas convictions for\\n\\nrobbery and aggravated robbery, we reverse the district court’s denial of Bong’s\\n\\n§ 2255 motion and remand to the district court for further proceedings. On remand,\\n\\nthe district court will need to determine in the first instance whether Bong’s\\n\\nremaining convictions are sufficient to support application of the ACCA.\\n\\nSpecifically, Bong has the following convictions that might constitute “crimes of\\n\\nviolence” for purposes of the ACCA: (1) a 1988 Kansas conviction for burglarizing a\\n\\nresidence; (2) a 1990 Kansas conviction for aggravated escape from custody (he\\n\\nescaped from the Sedgwick County Community Corrections Center); (3) a 1999\\n\\nKansas conviction for “Riot (Misd)”; and (4) a 1999 Kansas conviction for\\n\\ntrafficking in contraband in a correctional facility. Bong briefly addresses the\\n\\nburglary and trafficking convictions in his opening appellate brief, but we conclude it\\n\\nis proper for the district court to consider these prior convictions in the first instance.\\n\\n Ineffective assistance of trial and appellate counsel—ACCA sentence\\n\\n 25\\n\\f The district court also granted Bong a COA on the question of whether his trial\\n\\nand appellate counsel were ineffective for failing to object to the district court’s\\n\\nimposition of the ACCA sentence. Having concluded that the district court erred in\\n\\nbasing Bong’s ACCA sentence on his prior Kansas robbery and aggravated robbery\\n\\nconvictions, it is unnecessary for us to address this ineffective assistance claim.\\n\\n III\\n\\n We now turn to the two issues as to which we granted Bong a COA:\\n\\n(1) whether the district court erred in rejecting his claim that his trial counsel was\\n\\nineffective for failing to independently investigate the facts of the alleged crime; and\\n\\n(2) whether the district court erred in summarily dismissing his claim regarding the\\n\\nallegedly newly-discovered videos of his stop and arrest (which his counsel now\\n\\ncharacterizes as a Brady/Giglio claim).6\\n\\n Ineffective assistance of trial counsel – failure to investigate\\n\\n Bong alleged in his original pro se § 2255 motion, and in greater detail in his\\n\\npro se reply brief, that his trial counsel was ineffective for failing to investigate the\\n\\nfacts of the traffic stop, Bong’s arrest, and Bong’s alleged possession of a firearm.\\n\\nBong argues that had his trial counsel “conducted even a minimally adequate\\n\\ninvestigation, trial counsel would have discovered and presented multiple witnesses\\n\\n\\n 6\\n See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding “that the\\nsuppression by the prosecution of evidence favorable to an accused upon request\\nviolates due process where the evidence is material either to guilt or to punishment”);\\nGiglio v. United States, 405 U.S. 150, 154 (1972) (mandating disclosure of evidence,\\nunder Brady, that affects the credibility of a witness whose testimony “may well be\\ndeterminative of guilt or innocence”).\\n 26\\n\\fto corroborate that Jeremy Fisher, not . . . Bong, owned and possessed the firearm\\n\\nand ammunition recovered by the police.” Motion to Expand COA at 2–3. Bong in\\n\\nturn argues that he “was entitled to a hearing to prove [this] claim.” Id. at 3.\\n\\nRelatedly, Bong argues that “the district court erred in disregarding the factual\\n\\nallegations set forth in [his] second pro se pleading.” Id. Although Bong concedes\\n\\nthat he titled this second pro se pleading a “Reply,” he argues this was “immaterial”\\n\\nbecause “pro se pleadings must be liberally construed” and thus the district court was\\n\\nobligated “to construe the ‘Reply’ as an amendment.” Id.\\n\\n The district court considered and rejected Bong’s claim that his trial counsel\\n\\nfailed to conduct an adequate investigation. ROA, Vol. 1 at 1067–68. In doing so,\\n\\nthe district court stated:\\n\\n Defendant’s § 2255 motion fails to identify any material matters\\n that defense counsel failed to investigate. His massive Reply Brief\\n identifies a multitude of issues that defendant now claims should have\\n been further investigated. But defendant fails to address the significant\\n evidence weighing against his claim that his statement was involuntary,\\n fails to show that counsel’s performance fell below an objective\\n standard of reasonableness, and fails to show that the alleged failure to\\n investigate likely made a difference in the outcome.\\n\\nId. at 1068.\\n\\n [D]efendant fails to cite any material evidence that defense\\n counsel failed to discover or to address in the course of the proceedings.\\n Defendant now claims a number of other things could have been\\n investigated, but most of these items have nothing to do with the issue\\n of whether defendant possessed the firearm that was found during the\\n stop. Defendant has now produced an affidavit of an individual named\\n Roger Schmidt, who says that he talked to defendant and his wife on the\\n night of the stop. Even if such evidence had been presented, however,\\n there is no reason to believe it could have affected the outcome of the\\n trial. Similarly, defendant now presents a statement from an individual\\n\\n 27\\n\\f named Richard Sipes, who claims to have seen defendant at the\\n suspected drug house on the evening of the stop, and who says “there\\n was not a gun around.” But in addition to obvious problems with this\\n witness’s credibility, his statement shows no basis for knowing whether\\n defendant had a gun in his waistband or in his car. Any failure to\\n discover such testimony did not prejudice defendant. Essentially,\\n defendant’s claim that additional investigation would have produced\\n evidence to exonerate him is unsupported speculation.\\n\\nId. at 1069–70 (citations omitted). At no point did Bong expressly request an\\n\\nevidentiary hearing on his failure-to-investigate claim and the district court in turn\\n\\ndid not address the need for a hearing.\\n\\n We review de novo Bong’s ineffective assistance of counsel claim and, in\\n\\ndoing so, accept any underlying factual findings made by the district court unless\\n\\nthey are clearly erroneous. United States v. Watson, 766 F.3d 1219, 1226 (10th Cir.\\n\\n2014).\\n\\n We conclude, with one exception, that the district court properly rejected\\n\\nBong’s allegations of ineffective assistance as either meritless or time-barred. That\\n\\none exception concerns Bong’s allegation that his trial counsel was ineffective for\\n\\nfailing to request copies of any available video recordings of the traffic stop and his\\n\\narrest. As we have noted, Bong alleged in his pro se reply brief that at some point in\\n\\n2016, while he was incarcerated, he contacted the City of Wichita and requested\\n\\ncopies of evidence relevant to his case under KORA. In response, the City of\\n\\nWichita allegedly acknowledged that “2 AXON videos (patrol car recording\\n\\nequipment) exist that are 18 minutes and 48 second long.” Id. at 884. However, the\\n\\nCity of Wichita allegedly refused to provide Bong with a copy of the videos due to\\n\\n\\n 28\\n\\fthe fact that he was incarcerated. Id. Bong now argues that these videos necessarily\\n\\nmust have been of his traffic stop and arrest and were improperly suppressed by the\\n\\npolice department or prosecution. Bong in turn alleges that these videos “will show\\n\\nthat [he] never resisted or attempted to escape before Thatcher just threw him to the\\n\\nground and began using force on him.” Id.\\n\\n The district court did not expressly address these allegations in its order\\n\\ndenying Bong’s § 2255 motion. Instead, the district court treated these allegations as\\n\\nuntimely because they were raised for the first time in Bong’s pro se reply brief and\\n\\nthus, in the district court’s view, fell outside of the one-year time limit set by\\n\\nAEDPA. ROA, Vol. 1 at 1047 n.1 (“To the extent the Reply attempts to raise new\\n\\nclaims, those claims are barred because they have been raised outside the applicable\\n\\none-year statute of limitations.”). The district court failed to consider, however, the\\n\\nfact that Bong’s § 2255 motion was filed within one year after Bong allegedly\\n\\ndiscovered this new evidence. Based upon the materials contained in the record on\\n\\nappeal, we conclude that the district court should have, at a minimum, determined\\n\\n“the date on which the facts supporting the claim . . . could have been discovered\\n\\nthrough the exercise of due diligence.” 28 U.S.C. § 2255(f)(4) (“The limitation\\n\\nperiod shall run from the latest of . . . the date on which the facts supporting the\\n\\nclaim or claims presented could have been discovered through the exercise of due\\n\\n\\n\\n\\n 29\\n\\fdiligence.”). Consequently, we reverse on this narrow issue of ineffective assistance\\n\\nof trial counsel and remand to the district court for further consideration.7\\n\\n Brady/Giglio claims – suppression of video evidence\\n\\n Bong also challenges the district court’s dismissal of his related Brady/Giglio\\n\\nclaim. Generally speaking, “[w]e review de novo the existence of a Brady violation.”\\n\\nUnited States v. Wells, 873 F.3d 1241, 1259 (10th Cir. 2017). “Proving a Brady\\n\\nclaim requires the defendant to show by a preponderance of the evidence (1) that the\\n\\ngovernment suppressed evidence, (2) that the evidence was favorable to the\\n\\ndefendant, and (3) that the evidence was material.” Id.\\n\\n Bong alleged that “[t]hrough local law enforcement actions attributable to the\\n\\nGovernment, the Government suppressed the video recordings” of the traffic stop and\\n\\nhis arrest and that “Officer Thatcher presented false testimony denying that any video\\n\\nrecordings existed.” Aplt. Br. at 44. The district court did not expressly address this\\n\\nclaim in its order denying Bong’s § 2255 motion, but instead concluded that it was a\\n\\nnew claim raised for the first time in Bong’s pro se reply brief and was “barred\\n\\nbecause [it was] raised outside the applicable one-year statute of limitations.” ROA,\\n\\nVol. 1 at 1047 n.1.\\n\\n As with Bong’s related ineffective assistance claim, the district court failed to\\n\\nconsider the fact that Bong’s § 2255 motion was filed within one year after Bong\\n\\n\\n\\n 7\\n We note that this ineffective assistance of counsel claim is intertwined with,\\nand will ultimately hinge on the merits of, Bong’s Brady/Giglio claim regarding the\\nalleged videotapes of his stop and arrest.\\n 30\\n\\fallegedly discovered the existence of the video recordings. And, notably, the\\n\\ngovernment agreed at oral argument that the district court erred in summarily\\n\\ndismissing the claim as untimely. Consequently, we reverse the district court’s\\n\\ndismissal of Bong’s Brady/Giglio claim and remand the claim to the district court for\\n\\nfurther consideration.8\\n\\n IV\\n\\n With respect to Bong’s claims regarding his ACCA sentence, we REVERSE\\n\\nthe district court’s denial of § 2255 relief and REMAND with directions to the\\n\\ndistrict court to determine whether Bong’s ACCA sentence can be supported by his\\n\\nnon-robbery-related convictions. With respect to Bong’s ineffective assistance of\\n\\ncounsel claim, we AFFIRM in part, REVERSE in part, and REMAND to the district\\n\\ncourt for further proceedings consistent with this opinion. With respect to Bong’s\\n\\nBrady/Giglio claim, we REVERSE and REMAND for further proceedings consistent\\n\\nwith this opinion. Bong’s motion for expedited relief in DENIED as moot.\\n\\n\\n\\n\\n 8\\n According to the government, it has evidence, in particular affidavits from\\nCity employees, directly refuting Bong’s allegations regarding the purported\\nvideotapes. But the government conceded that this evidence is not in the record on\\nappeal and thus the proper course is for the district court to consider all of the\\nevidence in the first instance.\\n 31\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4362560/\", \"author_raw\": \"BRISCOE, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"BRISCOE"},"judge2":{"kind":"string","value":"KELLY"},"judge3":{"kind":"string","value":"BACHARACH"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4585307/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Troy A. BONG, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-28\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 28, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v. No. 16-3323\n\n TROY A. BONG,\n\n Defendant - Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Kansas\n (D.C. Nos. 6:16-CV-01088-JTM and 6:13-CR-10004-JTM-1)\n _________________________________\n\nJosh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public\nDefender, with him on the briefs), Office of the Federal Public Defender for the District\nof Colorado, Denver, Colorado, appearing for Appellant.\n\nJared S. Maag, Assistant United States Attorney (Thomas E. Beall, United States\nAttorney, with him on the briefs), Office of the United States Attorney for the District of\nKansas, Topeka, Kansas, appearing for Appellee.\n _________________________________\n\nBefore BRISCOE, KELLY, and BACHARACH, Circuit Judges.\n _________________________________\n\nBRISCOE, Circuit Judge.\n _________________________________\n\n Defendant Troy Bong, convicted in 2013 of being a felon in possession of a\n\nfirearm and sentenced to a term of imprisonment of 293 months, appeals from the\n\ndistrict court’s denial of his motion to vacate, set aside, or correct sentence pursuant\n\fto 28 U.S.C. § 2255. The district court granted Bong a certificate of appealability\n\n(COA) on Bong’s claims that he was improperly sentenced under the Armed Career\n\nCriminal Act (ACCA) and that his trial and appellate counsel were ineffective for\n\nfailing to challenge the ACCA sentencing. We subsequently granted Bong a COA as\n\nto two additional issues: (1) whether his trial counsel was ineffective for failing to\n\ninvestigate the facts of the underlying traffic stop, Bong’s resulting arrest, and\n\nBong’s alleged possession of a firearm; and (2) whether the prosecution suppressed\n\nany available video recordings of his stop and arrest.\n\n Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we agree with Bong that\n\nthe district court erred in treating his prior Kansas state convictions for robbery and\n\naggravated robbery as “violent felonies” under the ACCA. Consequently, we remand\n\nto the district court for consideration of whether Bong’s remaining prior convictions\n\nare sufficient to support his sentence under the ACCA. As for Bong’s ineffective\n\nassistance of trial counsel claims, we affirm in part, reverse in part, and remand for\n\nfurther proceedings. Lastly, as to Bong’s prosecutorial misconduct claim, we reverse\n\nand remand for further proceedings.\n\n I\n\n a) The underlying facts of Bong’s case\n\n In an unpublished order and judgment issued in 2014, we addressed Bong’s\n\ndirect appeal and summarized the underlying facts of his case:\n\n On December 22, 2012, Officers [Robert] Thatcher and [Joseph]\n Springob of the Wichita Police Department were parked outside a house\n that was the subject of a drug investigation. The officers observed a car\n\n 2\n\fleave the target house and followed the vehicle. The driver of the\nvehicle failed to activate the car’s turn signal 100 feet before an\nintersection. Based on this traffic violation, the officers initiated a\ntraffic stop. Officer Springob approached the driver’s side of the car,\nwhile Officer Thatcher approached the passenger side. A woman, later\nidentified as Mr. Bong’s wife, was driving the car. Mr. Bong was in the\nfront passenger seat.\n Officer Thatcher used his flashlight to look into the passenger\nside of the vehicle as he approached. Officer Thatcher testified Mr.\nBong refused to make eye contact, instead staring straight ahead.\nOfficer Thatcher thought Mr. Bong looked familiar, prompting him to\nask for Mr. Bong’s identification. Mr. Bong opened the passenger door\nto hand Officer Thatcher his identification. As Mr. Bong opened the\ndoor, Officer Thatcher noticed a cigarette pack between the passenger\nseat and the door. Officer Thatcher found this suspicious because in his\nexperience people attempting to hide illegal substances often drop them\nbetween the seat and door.\n After examining Mr. Bong’s identification, Officer Thatcher\nrecalled he had previously arrested Mr. Bong on drug, firearms, and\nparole violation charges. Officer Thatcher asked Mr. Bong if he was\nstill on parole, but Mr. Bong refused to respond. According to Officer\nThatcher, Mr. Bong began to exhibit signs of nervousness—heavy\nbreathing, sweating, and refusal to acknowledge the officer. Because\nOfficer Thatcher’s prior arrest of Mr. Bong had involved a firearm, the\nofficer became concerned for his and Officer Springob’s safety. Officer\nThatcher then asked Mr. Bong to exit the vehicle. Mr. Bong initially\nrefused to respond, but he eventually exited the vehicle after Officer\nThatcher repeated his order several times.\n When Mr. Bong stepped out of the vehicle, Officer Thatcher\nnoticed he was standing so that the right side of his body was turned\naway. Officer Thatcher also observed a knife clipped into one of the\nfront pockets of Mr. Bong’s jacket. Officer Thatcher removed the knife\nfrom Mr. Bong’s pocket and told him to put his hands on top of the car.\nHe then informed Mr. Bong that he was going to perform a patdown for\nweapons. According to Officer Thatcher, Mr. Bong hesitated, but\neventually put his hands on the top of the car.\n Officer Thatcher reached up to place his hands on top of Mr.\nBong’s hands on the car roof. As he did so, Mr. Bong attempted to back\naway from the car and evade Officer Thatcher. Because he feared Mr.\nBong might have a weapon, Officer Thatcher attempted to maintain\ncontrol of Mr. Bong’s hands. The two struggled briefly, at which point\nOfficer Thatcher tried to throw Mr. Bong to the ground while keeping\ncontrol of his hands. Both men fell to the ground, still struggling. As\n\n 3\n\f Mr. Bong attempted to rise, Officer Thatcher kicked him approximately\n three times in the abdomen in an attempt to knock him back down. At\n that point, Officer Thatcher observed a black object resembling a\n firearm fall to the ground. He immediately yelled “gun, gun!” Aplt.\n Appx. at 93.\n In response to Officer Thatcher’s shout, Officer Springob entered\n the fray and knocked Mr. Bong to the ground. The officers were able to\n subdue Mr. Bong and place him in handcuffs. After the officers\n restrained Mr. Bong, they found a firearm on the ground beneath him.\n\nUnited States v. Bong, 596 F. App’x 607, 608–09 (10th Cir. 2014) (Bong I).\n\n b) Bong’s trial proceedings and sentencing\n\n On January 8, 2013, a federal grand jury indicted Bong on one count of being\n\na felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Bong “moved\n\nto suppress the evidence obtained during the traffic stop and his arrest, arguing it was\n\nobtained in violation of his Fourth Amendment rights.” 596 F. App’x at 609. Bong\n\n“acknowledged the officers had reasonable suspicion to initiate an investigative\n\ntraffic stop on the basis of the observed traffic violation,” but nevertheless “argued\n\nthe scope of the detention following the traffic stop and the force used by the officers\n\nwas unreasonable.” Id. “The district court expressed concern about the level of force\n\nused by the officers, but it ultimately concluded Officer Thatcher’s actions were\n\njustified under the circumstances” and thus “denied [the] motion to suppress.” Id.\n\n “The case proceeded to trial,” where the “Government advanced the theory\n\nthat . . . Bong dropped the gun during the scuffle with the officers.” Id. “Bong’s\n\ndefense was that another man, Jeremy Fisher, had dropped the gun where it was\n\nfound and the traffic stop and subsequent scuffle only coincidentally occurred at the\n\n\n\n 4\n\fsame location . . . Fisher had dropped the gun.” Id. At the conclusion of the\n\nevidence, the jury convicted Bong of the felon-in-possession charge.\n\n The presentence investigation report (PSR) applied a base offense level of 24.\n\nBut the PSR concluded that Bong “ha[d] at least three prior convictions for a violent\n\nfelony or serious drug offense, or both, which were committed on different\n\noccasions” and was therefore “an armed career criminal and subject to an enhanced\n\nsentence under the provisions of 18 U.S.C. § 924(e).” ROA, Vol. 2 at 11.\n\nConsequently, the PSR applied an offense level of 33 pursuant to U.S.S.G. § 4B1.4.\n\nThe PSR in turn concluded that Bong’s total criminal history score was 31, which\n\nresulted in a criminal history category of VI. Together, the total offense level of 33\n\nand the criminal history category of VI resulted in an advisory sentencing guidelines\n\nrange of 235 to 293 months.\n\n Bong did not file objections to the PSR, but did file a sentencing memorandum\n\nasking the district court to vary downward and impose a sentence of 187 months.\n\nThe district court denied that request and sentenced Bong to a term of imprisonment\n\nof 293 months.\n\n c) Bong’s direct appeal\n\n Bong filed a direct appeal challenging the district court’s denial of his motion\n\nto suppress. Bong also challenged the trial court’s admission at trial of two sets of\n\nstatements. On December 18, 2014, we issued an unpublished order and judgment\n\nrejecting Bong’s arguments and affirming Bong’s conviction. Bong I, 596 F. App’x\n\nat 614.\n\n 5\n\f Bong filed a petition for writ of certiorari with the Supreme Court. His\n\npetition was denied on April 20, 2015. Bong v. United States, 135 S. Ct. 1873\n\n(2015).\n\n d) Bong’s § 2255 proceedings\n\n On April 6, 2016, Bong filed a pro se motion to vacate, set aside, or correct\n\nsentence pursuant to 28 U.S.C. § 2255 asserting twenty-two separate grounds for\n\nrelief. Of relevance here, Ground One of the motion argued that in light of the\n\nSupreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015)\n\n(Johnson II), Bong’s prior convictions did not qualify as “violent felonies” or “crimes\n\nof violence” for enhanced sentencing purposes because they did not require the use,\n\nattempted use, or threatened use of physical force. ROA, Vol. 1 at 633. Ground Two\n\nalleged, in pertinent part, that Bong’s appellate counsel was ineffective for failing to\n\n“raise, brief and argue the . . . fast developing legal issues regarding [the] Armed\n\nCareer Criminal Act and enhanced sentence.” Id. at 634. Ground Twenty One of\n\nBong’s motion alleged that his trial counsel was ineffective for failing to challenge\n\nthe PSR or the convictions used to qualify Bong for the ACCA enhancement. Id.\n\nat 655.\n\n Bong subsequently moved for appointment of counsel. The district court\n\ngranted the motion, but solely for purposes of counsel assisting Bong “in obtaining\n\nrelief under Johnson [II].” Dist. Ct. Docket No. 74 at 2. Bong’s appointed counsel\n\nmoved to amend the § 2255 motion. In support, Bong’s counsel argued that, based\n\non the Supreme Court’s decision in Mathis v. United States, 136 S. Ct. 2243 (2016),\n\n 6\n\fit was “clear that . . . Bong’s 1988 Kansas burglary conviction should not, and cannot\n\nbe used as a predicate ‘violent felony’ for an Armed Career Criminal Act\n\nenhancement and it was error to be included as such by the [trial] Court,” and in turn\n\n“it was ineffective for his trial and appellate counsel to fail to raise this issue at the\n\ntime of his original sentencing and appeal.” ROA, Vol. 1 at 783. The government\n\nfiled a response arguing that Mathis did not apply retroactively to cases on collateral\n\nreview. Id. at 790. Bong’s appointed counsel in turn filed a reply brief challenging\n\nall of Bong’s prior convictions used to establish his ACCA status.\n\n On September 22, 2016, Bong filed a pro se pleading entitled “TROY\n\nBONG’S REPLY TO PLAINTIFF’S RESPONSE TO MOTION TO VACATE, SET\n\nASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U. S. C. 2255.” Id. at 831.\n\nIn that pro se pleading, Bong alleged, in pertinent part, that he submitted a request\n\nunder the Kansas Open Records Act (KORA), Kan. Stat. Ann. §§ 45-215 to 45-223,\n\nand that the City of Wichita, in response to his request, stated that “2 AXON videos\n\n(patrol car recording equipment) exist” from his stop and arrest “that are 18 minutes\n\nand 48 seconds long.” Id. at 884. Bong further alleged that “due to [his]\n\nincarceration he [wa]s unable to purchase or receive copies of these videos,” but that\n\nthe videos “w[ould] show that [he] never resisted or attempted to escape before\n\nThatcher threw him to the ground and began using force on him.” Id. Thus, Bong\n\nargued, “these videos constitute impeaching evidence which also show that the\n\nofficers gave perjured testimony at trial upon which the jury relied to convict [him].”\n\nId.\n\n 7\n\f On October 28, 2016, the district court issued a memorandum and order\n\ndenying Bong’s § 2255 motion. The district court rejected Bong’s Johnson II-based\n\narguments, noting that he “has at least three convictions under Kansas law for\n\nrobbery or aggravated robbery” that “qualify as violent felonies under the ACCA.”\n\nId. at 1051. More specifically, the district court noted that Bong “was convicted in a\n\nKansas district court on May 29, 1990, of three counts of robbery, three counts of\n\naggravated robbery, and one count of attempted robbery.” Id. at 1052. These\n\noffenses, the district court noted, “occurred on March 17, 1990; March 22, 1990;\n\nMarch 25, 1990 (two offenses); March 29, 1990; April 3, 1990; and April 6, 1990.”\n\nId. The district court in turn noted that “[a]t the time of the offenses, Kansas law\n\ndefined robbery as ‘the taking of property from the person or presence of another by\n\nthreat of bodily harm to his person or the person of another or by force,’” id. (quoting\n\nKan. Stat. Ann. § 21-3426 (1970)), and “[a]ggravated robbery was ‘a robbery\n\ncommitted by a person who is armed with a dangerous weapon or who inflicts bodily\n\nharm on any person in the course of such robbery.’” Id. (quoting Kan. Stat. Ann.\n\n§ 21-3427 (1970)). The district court thus concluded that “the elements of robbery\n\nunder Kansas law incorporate the ‘physical force’ necessary to constitute a violent\n\noffense under § 924(e)(2)(B).” Id. The district court also concluded that “[t]he\n\nelement of force or threat of bodily harm in Kansas robbery materially distinguishes\n\nthis offense from Johnson [II]” because “[t]he Kansas element of the intentional use\n\nof force or threat of bodily harm necessarily contemplates force capable of causing\n\npain or injury, placing this offense squarely within the violent felonies Congress had\n\n 8\n\fin mind in adopting the ACCA.” Id. at 1053. In addition, the district court noted that\n\nBong cited “no Kansas Supreme Court case finding the force element of robbery to\n\nbe satisfied by evidence of ‘any physical contact’ with the victim” and, “[t]o the\n\ncontrary, Kansas cases characterize robbery as a taking accomplished by violence or\n\nintimidation.” Id. at 1053-54. Lastly, the district court noted that Bong’s “seven or\n\nso robbery offenses (including aggravated robbery) were largely consolidated for\n\ncharging and sentencing,” but “occurred (with one exception) on different dates, and\n\nwere thus ‘committed on occasions different from one another.’” Id. at 1054\n\n(quoting United States v. Tisdale, 921 F.2d 1095, 1098 (10th Cir. 1990)).\n\n The district court rejected all of the other claims that Bong asserted, including\n\nthe various ineffective assistance of counsel and appellate counsel claims. In\n\naddition, the district court addressed Bong’s pro se reply brief in the following\n\nmanner:\n\n Defendant has filed a 158-page pro se Reply Brief (Dkt. 96) that\n attempts to raise a multitude of claims in addition to those set forth in\n the original or amended § 2255 motions. To the extent the Reply\n attempts to raise new claims, those claims are barred because they have\n been raised outside the applicable one-year statute of limitations. See\n United States v. Guerrero, 488 F.3d 1313, 1316 (10th Cir. 2007)\n (“When a § 2255 movant seeks to amend his pleading to include a new\n claim, we will only entertain this claim if the amendment is made within\n the one-year limit set by AEDPA.”). To the extent the Reply raises new\n arguments (but not new claims) that were not set forth in his initial or\n amended § 2255 motions, those arguments are considered waived. See\n United States v. Herget, [585 F. App’x 948, 950] (10th Cir. 2014).\n Nevertheless, the court has addressed the merits of the arguments\n contained in the Reply Brief to the extent feasible.\n\nId. at 1047 n.1.\n\n\n 9\n\f Lastly, the district court granted Bong a COA with respect to the issues raised\n\nin his § 2255 motion concerning his “classification as an armed career criminal and\n\nthe effectiveness of counsel with respect to that classification.” Id. at 1072. The\n\ndistrict court denied Bong a COA on the remaining issues asserted in his § 2255\n\nmotion. Id. at 1073.\n\n Bong filed a timely notice of appeal. He has since filed a motion to expand the\n\nCOA to include additional issues.\n\n II\n\n We begin by focusing on the ACCA-related issues on which the district court\n\ngranted Bong a COA. As outlined below, we conclude that Bong’s Kansas\n\nconvictions for robbery and aggravated robbery do not constitute “violent felonies”\n\nfor purposes of the ACCA.\n\n Standards of review\n\n “A motion to vacate a sentence under 28 U.S.C. § 2255 is generally the\n\nexclusive remedy for a federal prisoner seeking to attack the legality of detention.”\n\nUnited States v. Harris, 844 F.3d 1260, 1263 (10th Cir. 2017) (quotation marks and\n\nbrackets omitted). We review de novo the district court’s rulings on a § 2255 motion\n\nand its findings of fact for clear error. Id.\n\n “Whether a prior conviction satisfies the ACCA’s violent felony definition is a\n\nlegal question we review de novo.” United States v. Titties, 852 F.3d 1257, 1263\n\n(10th Cir. 2017).\n\n\n\n 10\n\f Was Bong properly sentenced under the ACCA?\n\n “[T]he ACCA mandates an enhanced sentence of imprisonment of not less\n\nthan 15 years when the violator of § 922(g) has ‘three previous convictions . . . for a\n\nviolent felony.’” United States v. Garcia, 877 F.3d 944, 946 (10th Cir. 2017)\n\n(quoting 18 U.S.C. § 924(e)(1)). The ACCA defines a “violent felony” as “any crime\n\npunishable by imprisonment for a term exceeding one year” that falls within the\n\nscope of one of three enumerated clauses: (1) the elements clause, which states: “has\n\nas an element the use, attempted use, or threatened use of physical force against the\n\nperson of another,” § 924(e)(2)(B)(i); (2) the enumerated offenses clause, which\n\nincludes any crime that “is a categorical match to the generic offenses of ‘burglary,\n\narson, or extortion,’” Harris, 844 F.3d at 1263 (quoting § 924(e)(2)(B)(ii)); or (3) the\n\nresidual clause, which includes any crime that “otherwise involves conduct that\n\npresents a serious potential risk of physical injury to another.” 18 U.S.C.\n\n§ 924(e)(2)(B)(ii).\n\n In Johnson II, the Supreme Court held that the ACCA’s residual clause was\n\nunconstitutionally vague and “that imposing an increased sentence under the residual\n\nclause . . . violates the Constitution’s guarantee of due process.” 135 S. Ct. at 2563.\n\nThe result is that, for a prior conviction to constitute a “violent felony” under the\n\nACCA, it must either be one of the enumerated offenses in § 924(e)(2)(B)(ii) or it\n\nmust fall within the elements clause in § 924(e)(2)(B)(i). See Harris, 844 F.3d\n\nat 1263. In this case, it is undisputed that Bong’s prior Kansas convictions for\n\nrobbery and aggravated robbery do not fall within the enumerated-offenses clause\n\n 11\n\fand, thus, must fall within the elements clause in order to constitute “violent\n\nfelonies” for purposes of the ACCA.\n\n “To determine if a prior conviction qualifies as a violent felony” under the\n\nACCA’s elements clause, “we apply the categorical approach, focusing on the\n\nelements of the crime of conviction, not the underlying facts.” Harris, 844 F.3d\n\nat 1263 (citing Descamps v. United States, 133 S. Ct. 2276, 2283 (2013)). More\n\nspecifically, we must determine whether the Kansas statutes of conviction “ha[ve] as\n\nan element the use, attempted use, or threatened use of physical force against the\n\nperson of another.” See § 924(e)(2)(B)(i). “This inquiry requires application of both\n\nfederal law and [Kansas] state law.” Harris, 844 F.3d at 1264. “Federal law defines\n\nthe meaning of the phrase ‘use, attempted use, or threatened use of physical force’ in\n\n§ 924(e)(2)(B)(i).” Id. “And state law defines the substantive elements of the crime\n\nof conviction.” Id.\n\n The terms employed in the ACCA’s elements clause have, for the most part,\n\nbeen clearly defined by the Supreme Court. The term “use,” as employed in the\n\nACCA’s elements clause, “requires active employment” rather “than negligent or\n\nmerely accidental conduct.” Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). In turn, the\n\nterm “physical,” as employed in the ACCA’s elements clause, means “force exerted\n\nby and through concrete bodies—distinguishing physical force from, for example,\n\nintellectual force or emotional force.” Johnson v. United States, 559 U.S. 133, 138\n\n(2010) (Johnson I). As for the term “force,” the Court rejected the traditional\n\ndefinition (i.e., that force can be satisfied by even the slightest offensive touching)\n\n 12\n\fand instead held that in the context of the ACCA, the phrase “physical force” means\n\n“violent force”—“force capable of causing physical pain or injury to another person.”\n\nId. at 140. Thus, the ACCA’s elements clause refers to the active, attempted, or\n\nthreatened employment of violent force—force capable of causing physical pain or\n\ninjury—against the person of another.\n\n Recently, in Stokeling v. United States, 586 U.S. –, 2019 WL 189343 (2019),\n\nthe Supreme Court revisited the ACCA’s elements clause to determine whether a\n\nFlorida robbery conviction constituted a predicate offense under the ACCA. In doing\n\nso, the Court held “that the elements clause encompasses robbery offenses that\n\nrequire the criminal to overcome the victim’s resistance.” 2019 WL 189343 at *3.\n\nThe Court explained that “the force necessary to overcome a victim’s physical\n\nresistance is inherently ‘violent’ in the sense contemplated by Johnson[ I], and\n\n‘suggest[s] a degree of power that would not be satisfied by the merest touching.’”\n\nId. at *7 (quoting Johnson I, 559 U.S. at 139). “This is true,” the Court noted,\n\n“because robbery that must overpower a victim’s will—even a feeble or weak-willed\n\nvictim—necessarily involves a physical confrontation and struggle.” Id. The Court\n\nstated that a physical confrontation or “altercation need not cause pain or injury or\n\neven be prolonged” because “it is the physical contest between the criminal and the\n\nvictim that is itself ‘capable of causing physical pain or injury.’” Id. (quoting\n\nJohnson I, 559 U.S. at 140). Lastly, and significantly for purposes of our case, the\n\nCourt made it a point to emphasize that the “[m]ere ‘snatching of property from\n\nanother’ will not suffice” to constitute robbery under Florida law. Id. at *9.\n\n 13\n\f Having outlined the meaning of the ACCA’s elements clause, “[w]e now apply\n\nthese principles to [the Kansas] robbery statute to determine whether it ‘has as an\n\nelement the use, attempted use, or threatened use of physical force against the person\n\nof another.’” Id. (quoting § 924(e)(2)(B)(i)). In Harris, we outlined a “two-step\n\ninquiry” for resolving whether a state’s “robbery statute requires physical force as\n\nthat term is used in the ACCA.” 844 F.3d at 1264. First, “we must identify the\n\nminimum ‘force’ required by [the applicable state] law for the crime of robbery.” Id.\n\nSecond, we must “then determine if that force categorically fits the [ACCA’s]\n\ndefinition of physical force.” Id. (italics in original). The Supreme Court has\n\nemphasized “that in construing the minimum culpable conduct, such conduct only\n\nincludes that in which there is a ‘realistic probability, not a theoretical possibility’ the\n\nstate statute would apply.” Id. (quoting Moncrieffe v. Holder, 133 S. Ct. 1678, 1685\n\n(2013)). “Decisions from the state supreme court best indicate a ‘realistic\n\nprobability,’ supplemented by decisions from the intermediate-appellate courts.” Id.\n\n(quoting Moncrieffe, 133 S. Ct. at 1685).\n\n Bong’s ACCA sentence was based, in pertinent part, on three Kansas state\n\nrobbery convictions and three Kansas state aggravated robbery convictions, all of\n\nwhich occurred in April of 1990 (but were based on separate incidents). At the time\n\nof those convictions, the Kansas robbery statute provided as follows: “Robbery is the\n\ntaking of property from the person or presence of another by threat of bodily harm to\n\nhis person or the person of another or by force.” Kan. Stat. Ann. § 21-3426 (1988).\n\nAnd the Kansas aggravated robbery statute provided: “Aggravated robbery is a\n\n 14\n\frobbery committed by a person who is armed with a dangerous weapon or who\n\ninflicts bodily harm upon any person in the course of such robbery.” Kan. Stat. Ann.\n\n§ 21-3427 (1988).\n\n In the unpublished decision in United States v. Nicholas, 686 F. App’x 570\n\n(10th Cir. 2017), a two-judge panel of this court addressed whether the same Kansas\n\nrobbery statute required “physical force” as defined in the ACCA. In doing so, the\n\npanel in Nicholas “look[ed] . . . to Kansas state law to define the substantive\n\nelements of Kansas robbery and, in particular, the requirements of ‘force’ or ‘threat\n\nof bodily harm.’” Id. at 574. The panel took particular note of State v. McKinney,\n\n961 P.2d 1 (Kan. 1998), in which the Kansas Supreme Court reviewed the\n\ndefendant’s robbery conviction for purse-snatching. The robbery victim in the case\n\ntestified that she had cashed some checks at a bank and walked outside with a “thing\n\nthat [she] had the money in” when, as she was opening the door to her car, McKinney\n\nappeared, “pushed [her] up against a door,” “grabbed [the] thing [containing the\n\nmoney] . . . and took out.” 961 P.2d at 4. “McKinney told police that he had\n\nsnatched [the victim’s] purse from her arm, but he denied pushing her,” and he\n\nconsequently “argue[d] that the jury should have been instructed on theft as a lesser\n\nincluded offense of robbery.” Id. at 8. The Kansas Supreme Court rejected\n\nMcKinney’s argument, concluding that even if he snatched the victim’s purse without\n\npushing her, simply “snatching the purse away from [the victim] constituted the\n\nthreat of bodily harm, which is an element of robbery.” Id. Although the panel in\n\nNicholas “acknowledge[d] that many, if not most, Kansas robbery convictions will\n\n 15\n\flikely involve a greater degree of force than mere purse-snatching,” it nevertheless\n\nconcluded that “[i]n the context of Kansas robbery, McKinney establishes th[e]\n\nlowest level of culpable conduct.”1 686 F. App’x at 575.\n\n The panel in Nicholas in turn “conclude[d] that Kansas robbery does not\n\nnecessarily require the use, attempted use, or threatened use of violent force against\n\nthe person of another.” Id. at 576. In doing so, the panel in Nicholas noted that\n\n“[s]everal circuit courts have concluded that, because a state’s robbery statute may be\n\nviolated with minimal actual force, it does not qualify as a violent felony under the\n\nACCA.” Id. at 575 (citing cases from the Fourth, Eighth, and Ninth Circuits\n\nconstruing Arkansas, Massachusetts, Missouri and North Carolina robbery statutes).\n\nIn particular, the Nicholas panel noted that the Ninth Circuit in United States v.\n\nParnell, 818 F.3d 974, 979 (9th Cir. 2016) had held, in the context of examining a\n\nMassachusetts armed robbery statute, that “the snatching of a purse from a victim’s\n\nhand . . . does not constitute force ‘capable of causing physical pain or injury to\n\nanother person.’” 818 F.3d at 979 (quoting Johnson II, 559 U.S. at 140).\n\n Ultimately, the panel in Nicholas concluded that “the minimum force\n\nnecessary under Kansas law to support a robbery conviction” does not “categorically\n\nfit[] the definition of physical force under the ACCA.” Id. at 575. In other words,\n\n\n 1\n In reaching this conclusion, the panel in Nicholas noted that it “ha[d] not\nidentified a general statement from Kansas courts as to the degree of force required to\nsupport a Kansas robbery conviction.” 686 F. App’x at 576 n.5. Indeed, the panel\nnoted that most of the Kansas cases “addressing the force element of Kansas robbery\nhave done so in the context of determining the statute’s temporal requirements, not\nits degree-of-force requirements.” Id.\n 16\n\fthe panel held that “[b]ecause Kansas robbery does not require the use, attempted\n\nuse, or threatened use of violent force as defined in Johnson, it cannot serve as a\n\npredicate offense for purposes of the ACCA’s sentence enhancement provisions.” Id.\n\nat 576.\n\n Not surprisingly, the parties in the case before us have divergent views\n\nregarding Nicholas. Bong argues that we should adopt the reasoning in Nicholas\n\nbecause, although “not precedential, it is persuasive and applies here.” Aplt. Br.\n\nat 48. The government, in response, argues that Nicholas “was wrongly decided.”\n\nAplee. Br. at 16. To begin with, the government asserts that, “contrary to the panel’s\n\nnote in Nicholas that it could not identify a general statement from Kansas courts as\n\nto the degree of force necessary to constitute robbery,” there is in fact “sufficient\n\nguidance” in Kansas case law “establishing the force necessary to support a robbery\n\nconviction.” Aplee. Br. at 30. In particular, the government points to the following\n\nstatement made by the Kansas Supreme Court in State v. Aldershof, 556 P.2d 371\n\n(Kan. 1976):\n\n [T]o constitute the crime of robbery by forcibly taking money\n from the person of its owner, it is necessary that the violence to the\n owner must either precede or be contemporaneous with the taking of the\n property and robbery is not committed where the thief has gained\n peaceable possession of the property and uses no violence except to\n resist arrest or to effect his escape.\n\nId. at 375. The government also cites various dictionaries for the proposition that\n\n“[t]he word ‘violence’ connotes more than mere physical contact.” Aplee. Br. at 30.\n\n\n\n\n 17\n\fThus, the government argues, “[i]t is plain under Kansas law that gaining ‘peaceable’\n\npossession of property is not robbery; rather, it is theft.” Id. at 31.\n\n Notably, the very same argument was made by the government in Nicholas and\n\nthe panel in that case rejected it, stating as follows:\n\n The primary case relied upon by the government, State v.\n Aldershof, 556 P.2d 371 (1976), uses the term “violence” in reference to\n robbery while answering the question of when force must occur, not\n what degree of force is required. Id. at 373-75. Moreover, insofar as\n Aldershof appears to conflate “violence” with the force necessary to\n support a robbery conviction, those concepts are later divorced in State\n v. Peck, 703 P.2d 781 (1985). See id. at 787 (“But the jury found there\n was no violence used in the commission of the robbery . . . . Since there\n was no direct evidence as to violence occurring with that taking, the\n jury acquitted Peck on the charge of aggravated robbery, and instead\n found him guilty of simple robbery.”).\n\n More importantly, the McKinney court explicitly relied on\n Aldershof in concluding that mere purse-snatching can support a\n conviction for Kansas robbery. See McKinney, 961 P.2d at 9. We must\n therefore reject any interpretation of Aldershof that would be\n inconsistent with the holding in McKinney. See Jackson v. Harris, 43\n F.2d 513, 516-17 (10th Cir. 1930) (“Where such decisions are in\n conflict, the national courts will follow the latest settled adjudications of\n the highest court of the state rather than the earlier ones . . . .”). In\n doing so, we acknowledge that many, if not most, Kansas robbery\n convictions will likely involve a greater degree of force than mere\n purse-snatching; however, our analysis must focus on the lowest level of\n conduct that can support a conviction under the statute. See Moncrieffe\n v. Holder, 569 U.S. 184[, 190-91] (2013) (“Because we examine what\n the state conviction necessarily involved, not the facts underlying the\n case, we must presume that the conviction ‘rested upon nothing more\n than the least of the acts’ criminalized, and then determine whether even\n those acts [would constitute violent felonies].” (quoting Johnson [II],\n 559 U.S. at 137) (alterations omitted)). In the context of Kansas\n robbery, McKinney establishes that lowest level of culpable conduct.\n\n686 F. App’x at 575 (parallel citations omitted).\n\n\n\n 18\n\f The government also argues that the panel in Nicholas “simply established a\n\nquantum of force standard greater than that set by Johnson I.” Aplee. Br. at 32.\n\nMore specifically, the government argues that “the panel in Nicholas arguably gave\n\nlittle credit to the adjective ‘capable’ in Johnson I, in turn concluding that purse\n\nsnatching is simply ‘incapable’ of causing physical injury or pain to another person.”\n\nId. at 33. “That,” the government asserts, “is far too broad of a conclusion to reach.”\n\nId. According to the government, “when considering that grabbing is sufficient to\n\ncause physical injury, it is reasonable to conclude that purse snatching—which\n\nnecessarily involves grabbing—is similarly sufficient force to cause physical injury.”\n\nId.\n\n The problem with the government’s argument is that it treats “purse snatching”\n\nas a singular type of action when, as case law clearly demonstrates, it can be\n\naccomplished in a variety of ways and with varying degrees of physical force. Of\n\ncourse, it is easy to conceive of a particular act of purse-snatching that involves force\n\ncapable of causing physical harm to the victim—or, indeed, that actually causes\n\nphysical harm to the victim. But that was not the task faced by the panel in Nicholas\n\nor by us. Rather, the task is to “identify the minimum ‘force’ required by [Kansas]\n\nlaw for the crime of robbery.” Harris, 844 F.3d at 1264. And the panel in Nicholas\n\nconcluded, correctly in our view, that this minimum level of force was defined by the\n\nspecific act of purse-snatching that occurred in McKinney—an act that, at least\n\naccording to the defendant, involved the mere snatching of the purse (or whatever the\n\nobject was that actually contained the money) without any application of force\n\n 19\n\fdirectly to the victim, and also, importantly, without any resistance by or injury to the\n\nvictim. See generally State v. Warwick, 654 P.2d 403, 405 (Kan. 1982) (holding that\n\n“neither robbery nor aggravated robbery require bodily contact or the actual\n\napplication of force to the person of another as a necessary element for the\n\ncommission of those crimes”), abrogated on other grounds by State v. Adams, 744\n\nP.2d 833 (Kan. 1987). Thus, we agree with the panel in Nicholas that robbery in\n\nKansas can be accomplished with minimal force that falls short of the “violent force”\n\nrequired under the ACCA’s elements clause.\n\n The government also suggests that Nicholas is inconsistent with our published\n\nopinion in Harris. The government notes that in Harris, the “panel rejected the Ninth\n\nCircuit’s decision in” Parnell, but in contrast the court in Nicholas “relied heavily on\n\nParnell to support its conclusion that Kansas’ robbery statute runs afoul of\n\nJohnson I.” Aplee. Br. at 34. Contrary to the government’s suggestion, however,\n\nNicholas and Harris are consistent in their treatment of Parnell. Both Nicholas and\n\nHarris recognized that Parnell dealt with a robbery conviction under Massachusetts\n\nlaw and both noted that under Massachusetts law, a defendant may be convicted of\n\nrobbery without using violence or intimidation of any sort. Nicholas and Harris came\n\nto different outcomes because each case addressed a different state statute. In\n\nNicholas, the panel concluded that robbery under Kansas law was similar to robbery\n\n\n\n\n 20\n\funder Massachusetts law, whereas the panel in Harris concluded that robbery under\n\nColorado law differed from robbery under Massachusetts law. 2\n\n In sum, we conclude that the government has failed to establish that the panel\n\nin Nicholas erred in concluding that “the minimum force necessary under Kansas law\n\nto support a robbery conviction” does not “categorically fit[] the definition of\n\nphysical force under the ACCA.” 686 F. App’x at 575. In turn, we adopt the\n\nreasoning of Nicholas and conclude that Bong’s prior Kansas convictions for robbery\n\ncannot serve as predicate offenses for purposes of the ACCA’s sentence enhancement\n\nprovisions.\n\n The question then becomes whether we should proceed to address the other\n\nconvictions that were cited in the PSR as predicate offenses, or whether we should\n\ninstead remand the case to the district court to determine in the first instance whether\n\nthose convictions are countable predicate offenses. Because the parties have briefed\n\nthe question of whether Bong’s Kansas state aggravated robbery convictions can\n\nserve as predicate offenses under the ACCA, we will proceed to address that\n\nquestion.\n\n\n\n 2\n As Bong notes in his Rule 28(j) letter, the First Circuit recently concluded\nthat a New York conviction for attempted robbery in the second degree was not a\n“crime of violence” for purposes of the career offender guidelines because “there is a\nrealistic probability that [the defendant’s] conviction was for attempting to commit\nan offense for which the least of the acts that may have constituted that offense\nincluded ‘purse snatching, per se.’” United States v. Steed, 879 F.3d 440, 450 (1st\nCir. 2018) (quoting People v. Santiago, 405 N.Y.S.2d 572, 579 (N.Y. App. Div.\n1978)).\n\n 21\n\f As noted, Bong has three prior convictions for violating the Kansas aggravated\n\nrobbery statute. At the time of his convictions, that statute provided: “Aggravated\n\nrobbery is a robbery committed by a person who is armed with a dangerous weapon\n\nor who inflicts bodily harm upon any person in the course of such robbery.” Kan.\n\nStat. Ann. § 21-3427 (1970). This statutory language makes clear that an aggravated\n\nrobbery is (a) a robbery (as defined in the Kansas robbery statute) committed by a\n\nperson who (b) is armed with a dangerous weapon or who inflicts bodily harm upon\n\nany person in the course of such robbery.3 Having concluded that robbery under\n\nKansas law is not a “violent crime” for purposes of the ACCA, the question remains\n\nwhether the second element described above is sufficient to render an aggravated\n\nrobbery a “violent crime.”\n\n In answering this question, we begin and ultimately end by focusing on\n\nwhether being armed with a dangerous weapon during the course of a robbery is\n\nsufficient to render the crime a “violent crime” for purposes of the ACCA. The\n\nKansas aggravated robbery statute does not define “armed,” and we have not found\n\nany Kansas cases expressly defining the term.4 Turning to dictionary definitions,\n\n\n 3\n It appears clear that these two alternative methods of rendering a robbery an\n“aggravated robbery” are not elements of different offenses, but rather only different\nmeans by which a person commits a single armed robbery offense. See Mathis 136\nS. Ct. at 2253; State v. Brown, 401 P.3d 611, 622 (Kan. 2017) (“aggravated robbery\ncan be committed by one who either ‘is armed with a dangerous weapon’ or ‘inflicts\nbodily harm on any person in the course of such robbery’”).\n 4\n The Kansas pattern jury instructions stated that it was not necessary for the\ndefendant to have exhibited the dangerous weapon to the victim, and that whether or\n (Continued . . .)\n 22\n\fBlack’s Law Dictionary defines “armed” as “[e]quipped with a weapon” or\n\n“[i]nvolving the use of a weapon.” Armed, Black’s Law Dictionary (10th ed. 2014).\n\nSimilarly, the Oxford English Dictionary defines “armed” as “[e]quipped with or\n\ncarrying a weapon or weapons (now typically firearms); involving the use of\n\nweaponry.” Armed, Oxford English Dictionary (online ed. 2017). Presumably, being\n\n“equipped” with a weapon is the same as “possessing” a weapon. In other words,\n\nsimple possession of a weapon, rather than actual use of a weapon, is a sufficient\n\nmeans of being “armed” for the purposes of the Kansas aggravated robbery statute.\n\nAnd that conclusion is supported by State v. Buggs, 547 P.2d 720 (Kan. 1976), where\n\nthe Kansas Supreme Court held that the Kansas aggravated robbery “statute requires\n\nonly that the robber be ‘armed with’ a dangerous weapon, not that he use it or that the\n\nvictim be aware of its presence.” Id. at 725.\n\n We in turn conclude that merely being “armed” with a weapon during the\n\ncourse of a robbery is not sufficient to render the crime a “violent crime” for\n\npurposes of the ACCA. For example, take the simple robbery that was committed in\n\nMcKinney—i.e., the purse-snatching. Had the defendant in that case been armed\n\nwith a weapon, even a concealed one, at the time of the purse-snatching, that would\n\nhave been sufficient to render the crime an aggravated robbery under Kansas law.\n\nBut, as with the simple crime of purse snatching, nothing about the defendant’s mere\n\npossession of a firearm (or another deadly weapon) would have necessarily caused\n\n\nnot the defendant was armed with a dangerous weapon was determined from the\nvictim’s point of view. State v. Holbrook, 932 P.2d 958, 961 (Kan. 1997).\n 23\n\fthe crime to involve “the use, attempted use, or threatened use of violent force\n\nagainst the person of another.” § 924(e)(2)(B)(i).\n\n Notably, the Ninth Circuit addressed a similar question in Parnell and\n\nconcluded that “[t]he mere fact that an individual is armed . . . does not mean he or\n\nshe has used the weapon, or threatened to use it, in any way.” 818 F.3d at 980. Like\n\nthe Kansas aggravated robbery statute at issue here, the Massachusetts aggravated\n\nrobbery statute that was before the court in Parnell did “not require a weapon to be\n\nused or displayed, or even that the victim be aware of it.” Id. The Ninth Circuit thus\n\nconcluded that “[t]here is a material difference between the presence of a weapon,\n\nwhich produces a risk of violent force, and the actual or threatened use of such\n\nforce.” Id. (emphasis in original). “Only the latter,” the Ninth Circuit held, “falls\n\nwithin the ACCA’s force clause.”5 Id.\n\n To be sure, the government in this case acknowledges Parnell, but states that it\n\n“disagrees with this decision.” Aplee. Br. at 36 n.11. Notably, however, the\n\ngovernment makes no attempt to explain why Parnell’s holding on this point was\n\nincorrect.\n\n In United States v. Redrick, 841 F.3d 478 (D.C. Cir. 2016), the District of\n\nColumbia Circuit distinguished Parnell, but it did so on the basis that the statute of\n\n\n\n 5\n As Bong notes in his Rule 28(j) letter, the Ninth Circuit also reached the\nsame conclusion in a more recent case, i.e., United States v. Jones, 877 F.3d 884 (9th\nCir. 2017) (holding that a conviction under Arizona’s armed robbery statute did not\ncategorically qualify as a violent felony conviction under the ACCA’s force clause).\n\n 24\n\fconviction in the case before it—i.e., Maryland armed robbery—required “that the\n\ndefendant commit the crime with the use of a dangerous or deadly weapon.” Id.\n\nat 484 (italics in original). Quite clearly, had the Kansas aggravated robbery statute\n\nrequired the use of a dangerous or deadly weapon, then Bong’s prior aggravated\n\nrobbery convictions would constitute predicate offenses under the ACCA. But, as\n\nnoted, the Kansas aggravated robbery statute does not include this requirement. We\n\ntherefore conclude that the Kansas crime of aggravated robbery is not categorically a\n\n“violent crime” for purposes of the ACCA.\n\n In light of our conclusions regarding Bong’s prior Kansas convictions for\n\nrobbery and aggravated robbery, we reverse the district court’s denial of Bong’s\n\n§ 2255 motion and remand to the district court for further proceedings. On remand,\n\nthe district court will need to determine in the first instance whether Bong’s\n\nremaining convictions are sufficient to support application of the ACCA.\n\nSpecifically, Bong has the following convictions that might constitute “crimes of\n\nviolence” for purposes of the ACCA: (1) a 1988 Kansas conviction for burglarizing a\n\nresidence; (2) a 1990 Kansas conviction for aggravated escape from custody (he\n\nescaped from the Sedgwick County Community Corrections Center); (3) a 1999\n\nKansas conviction for “Riot (Misd)”; and (4) a 1999 Kansas conviction for\n\ntrafficking in contraband in a correctional facility. Bong briefly addresses the\n\nburglary and trafficking convictions in his opening appellate brief, but we conclude it\n\nis proper for the district court to consider these prior convictions in the first instance.\n\n Ineffective assistance of trial and appellate counsel—ACCA sentence\n\n 25\n\f The district court also granted Bong a COA on the question of whether his trial\n\nand appellate counsel were ineffective for failing to object to the district court’s\n\nimposition of the ACCA sentence. Having concluded that the district court erred in\n\nbasing Bong’s ACCA sentence on his prior Kansas robbery and aggravated robbery\n\nconvictions, it is unnecessary for us to address this ineffective assistance claim.\n\n III\n\n We now turn to the two issues as to which we granted Bong a COA:\n\n(1) whether the district court erred in rejecting his claim that his trial counsel was\n\nineffective for failing to independently investigate the facts of the alleged crime; and\n\n(2) whether the district court erred in summarily dismissing his claim regarding the\n\nallegedly newly-discovered videos of his stop and arrest (which his counsel now\n\ncharacterizes as a Brady/Giglio claim).6\n\n Ineffective assistance of trial counsel – failure to investigate\n\n Bong alleged in his original pro se § 2255 motion, and in greater detail in his\n\npro se reply brief, that his trial counsel was ineffective for failing to investigate the\n\nfacts of the traffic stop, Bong’s arrest, and Bong’s alleged possession of a firearm.\n\nBong argues that had his trial counsel “conducted even a minimally adequate\n\ninvestigation, trial counsel would have discovered and presented multiple witnesses\n\n\n 6\n See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding “that the\nsuppression by the prosecution of evidence favorable to an accused upon request\nviolates due process where the evidence is material either to guilt or to punishment”);\nGiglio v. United States, 405 U.S. 150, 154 (1972) (mandating disclosure of evidence,\nunder Brady, that affects the credibility of a witness whose testimony “may well be\ndeterminative of guilt or innocence”).\n 26\n\fto corroborate that Jeremy Fisher, not . . . Bong, owned and possessed the firearm\n\nand ammunition recovered by the police.” Motion to Expand COA at 2–3. Bong in\n\nturn argues that he “was entitled to a hearing to prove [this] claim.” Id. at 3.\n\nRelatedly, Bong argues that “the district court erred in disregarding the factual\n\nallegations set forth in [his] second pro se pleading.” Id. Although Bong concedes\n\nthat he titled this second pro se pleading a “Reply,” he argues this was “immaterial”\n\nbecause “pro se pleadings must be liberally construed” and thus the district court was\n\nobligated “to construe the ‘Reply’ as an amendment.” Id.\n\n The district court considered and rejected Bong’s claim that his trial counsel\n\nfailed to conduct an adequate investigation. ROA, Vol. 1 at 1067–68. In doing so,\n\nthe district court stated:\n\n Defendant’s § 2255 motion fails to identify any material matters\n that defense counsel failed to investigate. His massive Reply Brief\n identifies a multitude of issues that defendant now claims should have\n been further investigated. But defendant fails to address the significant\n evidence weighing against his claim that his statement was involuntary,\n fails to show that counsel’s performance fell below an objective\n standard of reasonableness, and fails to show that the alleged failure to\n investigate likely made a difference in the outcome.\n\nId. at 1068.\n\n [D]efendant fails to cite any material evidence that defense\n counsel failed to discover or to address in the course of the proceedings.\n Defendant now claims a number of other things could have been\n investigated, but most of these items have nothing to do with the issue\n of whether defendant possessed the firearm that was found during the\n stop. Defendant has now produced an affidavit of an individual named\n Roger Schmidt, who says that he talked to defendant and his wife on the\n night of the stop. Even if such evidence had been presented, however,\n there is no reason to believe it could have affected the outcome of the\n trial. Similarly, defendant now presents a statement from an individual\n\n 27\n\f named Richard Sipes, who claims to have seen defendant at the\n suspected drug house on the evening of the stop, and who says “there\n was not a gun around.” But in addition to obvious problems with this\n witness’s credibility, his statement shows no basis for knowing whether\n defendant had a gun in his waistband or in his car. Any failure to\n discover such testimony did not prejudice defendant. Essentially,\n defendant’s claim that additional investigation would have produced\n evidence to exonerate him is unsupported speculation.\n\nId. at 1069–70 (citations omitted). At no point did Bong expressly request an\n\nevidentiary hearing on his failure-to-investigate claim and the district court in turn\n\ndid not address the need for a hearing.\n\n We review de novo Bong’s ineffective assistance of counsel claim and, in\n\ndoing so, accept any underlying factual findings made by the district court unless\n\nthey are clearly erroneous. United States v. Watson, 766 F.3d 1219, 1226 (10th Cir.\n\n2014).\n\n We conclude, with one exception, that the district court properly rejected\n\nBong’s allegations of ineffective assistance as either meritless or time-barred. That\n\none exception concerns Bong’s allegation that his trial counsel was ineffective for\n\nfailing to request copies of any available video recordings of the traffic stop and his\n\narrest. As we have noted, Bong alleged in his pro se reply brief that at some point in\n\n2016, while he was incarcerated, he contacted the City of Wichita and requested\n\ncopies of evidence relevant to his case under KORA. In response, the City of\n\nWichita allegedly acknowledged that “2 AXON videos (patrol car recording\n\nequipment) exist that are 18 minutes and 48 second long.” Id. at 884. However, the\n\nCity of Wichita allegedly refused to provide Bong with a copy of the videos due to\n\n\n 28\n\fthe fact that he was incarcerated. Id. Bong now argues that these videos necessarily\n\nmust have been of his traffic stop and arrest and were improperly suppressed by the\n\npolice department or prosecution. Bong in turn alleges that these videos “will show\n\nthat [he] never resisted or attempted to escape before Thatcher just threw him to the\n\nground and began using force on him.” Id.\n\n The district court did not expressly address these allegations in its order\n\ndenying Bong’s § 2255 motion. Instead, the district court treated these allegations as\n\nuntimely because they were raised for the first time in Bong’s pro se reply brief and\n\nthus, in the district court’s view, fell outside of the one-year time limit set by\n\nAEDPA. ROA, Vol. 1 at 1047 n.1 (“To the extent the Reply attempts to raise new\n\nclaims, those claims are barred because they have been raised outside the applicable\n\none-year statute of limitations.”). The district court failed to consider, however, the\n\nfact that Bong’s § 2255 motion was filed within one year after Bong allegedly\n\ndiscovered this new evidence. Based upon the materials contained in the record on\n\nappeal, we conclude that the district court should have, at a minimum, determined\n\n“the date on which the facts supporting the claim . . . could have been discovered\n\nthrough the exercise of due diligence.” 28 U.S.C. § 2255(f)(4) (“The limitation\n\nperiod shall run from the latest of . . . the date on which the facts supporting the\n\nclaim or claims presented could have been discovered through the exercise of due\n\n\n\n\n 29\n\fdiligence.”). Consequently, we reverse on this narrow issue of ineffective assistance\n\nof trial counsel and remand to the district court for further consideration.7\n\n Brady/Giglio claims – suppression of video evidence\n\n Bong also challenges the district court’s dismissal of his related Brady/Giglio\n\nclaim. Generally speaking, “[w]e review de novo the existence of a Brady violation.”\n\nUnited States v. Wells, 873 F.3d 1241, 1259 (10th Cir. 2017). “Proving a Brady\n\nclaim requires the defendant to show by a preponderance of the evidence (1) that the\n\ngovernment suppressed evidence, (2) that the evidence was favorable to the\n\ndefendant, and (3) that the evidence was material.” Id.\n\n Bong alleged that “[t]hrough local law enforcement actions attributable to the\n\nGovernment, the Government suppressed the video recordings” of the traffic stop and\n\nhis arrest and that “Officer Thatcher presented false testimony denying that any video\n\nrecordings existed.” Aplt. Br. at 44. The district court did not expressly address this\n\nclaim in its order denying Bong’s § 2255 motion, but instead concluded that it was a\n\nnew claim raised for the first time in Bong’s pro se reply brief and was “barred\n\nbecause [it was] raised outside the applicable one-year statute of limitations.” ROA,\n\nVol. 1 at 1047 n.1.\n\n As with Bong’s related ineffective assistance claim, the district court failed to\n\nconsider the fact that Bong’s § 2255 motion was filed within one year after Bong\n\n\n\n 7\n We note that this ineffective assistance of counsel claim is intertwined with,\nand will ultimately hinge on the merits of, Bong’s Brady/Giglio claim regarding the\nalleged videotapes of his stop and arrest.\n 30\n\fallegedly discovered the existence of the video recordings. And, notably, the\n\ngovernment agreed at oral argument that the district court erred in summarily\n\ndismissing the claim as untimely. Consequently, we reverse the district court’s\n\ndismissal of Bong’s Brady/Giglio claim and remand the claim to the district court for\n\nfurther consideration.8\n\n IV\n\n With respect to Bong’s claims regarding his ACCA sentence, we REVERSE\n\nthe district court’s denial of § 2255 relief and REMAND with directions to the\n\ndistrict court to determine whether Bong’s ACCA sentence can be supported by his\n\nnon-robbery-related convictions. With respect to Bong’s ineffective assistance of\n\ncounsel claim, we AFFIRM in part, REVERSE in part, and REMAND to the district\n\ncourt for further proceedings consistent with this opinion. With respect to Bong’s\n\nBrady/Giglio claim, we REVERSE and REMAND for further proceedings consistent\n\nwith this opinion. Bong’s motion for expedited relief in DENIED as moot.\n\n\n\n\n 8\n According to the government, it has evidence, in particular affidavits from\nCity employees, directly refuting Bong’s allegations regarding the purported\nvideotapes. But the government conceded that this evidence is not in the record on\nappeal and thus the proper course is for the district court to consider all of the\nevidence in the first instance.\n 31\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Troy A. BONG, Defendant - Appellant.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-01-28\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS January 28, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n UNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v. No. 16-3323\\n\\n TROY A. BONG,\\n\\n Defendant - Appellant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Kansas\\n (D.C. Nos. 6:16-CV-01088-JTM and 6:13-CR-10004-JTM-1)\\n _________________________________\\n\\nJosh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public\\nDefender, with him on the briefs), Office of the Federal Public Defender for the District\\nof Colorado, Denver, Colorado, appearing for Appellant.\\n\\nJared S. Maag, Assistant United States Attorney (Thomas E. Beall, United States\\nAttorney, with him on the briefs), Office of the United States Attorney for the District of\\nKansas, Topeka, Kansas, appearing for Appellee.\\n _________________________________\\n\\nBefore BRISCOE, KELLY, and BACHARACH, Circuit Judges.\\n _________________________________\\n\\nBRISCOE, Circuit Judge.\\n _________________________________\\n\\n Defendant Troy Bong, convicted in 2013 of being a felon in possession of a\\n\\nfirearm and sentenced to a term of imprisonment of 293 months, appeals from the\\n\\ndistrict court’s denial of his motion to vacate, set aside, or correct sentence pursuant\\n\\fto 28 U.S.C. § 2255. The district court granted Bong a certificate of appealability\\n\\n(COA) on Bong’s claims that he was improperly sentenced under the Armed Career\\n\\nCriminal Act (ACCA) and that his trial and appellate counsel were ineffective for\\n\\nfailing to challenge the ACCA sentencing. We subsequently granted Bong a COA as\\n\\nto two additional issues: (1) whether his trial counsel was ineffective for failing to\\n\\ninvestigate the facts of the underlying traffic stop, Bong’s resulting arrest, and\\n\\nBong’s alleged possession of a firearm; and (2) whether the prosecution suppressed\\n\\nany available video recordings of his stop and arrest.\\n\\n Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we agree with Bong that\\n\\nthe district court erred in treating his prior Kansas state convictions for robbery and\\n\\naggravated robbery as “violent felonies” under the ACCA. Consequently, we remand\\n\\nto the district court for consideration of whether Bong’s remaining prior convictions\\n\\nare sufficient to support his sentence under the ACCA. As for Bong’s ineffective\\n\\nassistance of trial counsel claims, we affirm in part, reverse in part, and remand for\\n\\nfurther proceedings. Lastly, as to Bong’s prosecutorial misconduct claim, we reverse\\n\\nand remand for further proceedings.\\n\\n I\\n\\n a) The underlying facts of Bong’s case\\n\\n In an unpublished order and judgment issued in 2014, we addressed Bong’s\\n\\ndirect appeal and summarized the underlying facts of his case:\\n\\n On December 22, 2012, Officers [Robert] Thatcher and [Joseph]\\n Springob of the Wichita Police Department were parked outside a house\\n that was the subject of a drug investigation. The officers observed a car\\n\\n 2\\n\\fleave the target house and followed the vehicle. The driver of the\\nvehicle failed to activate the car’s turn signal 100 feet before an\\nintersection. Based on this traffic violation, the officers initiated a\\ntraffic stop. Officer Springob approached the driver’s side of the car,\\nwhile Officer Thatcher approached the passenger side. A woman, later\\nidentified as Mr. Bong’s wife, was driving the car. Mr. Bong was in the\\nfront passenger seat.\\n Officer Thatcher used his flashlight to look into the passenger\\nside of the vehicle as he approached. Officer Thatcher testified Mr.\\nBong refused to make eye contact, instead staring straight ahead.\\nOfficer Thatcher thought Mr. Bong looked familiar, prompting him to\\nask for Mr. Bong’s identification. Mr. Bong opened the passenger door\\nto hand Officer Thatcher his identification. As Mr. Bong opened the\\ndoor, Officer Thatcher noticed a cigarette pack between the passenger\\nseat and the door. Officer Thatcher found this suspicious because in his\\nexperience people attempting to hide illegal substances often drop them\\nbetween the seat and door.\\n After examining Mr. Bong’s identification, Officer Thatcher\\nrecalled he had previously arrested Mr. Bong on drug, firearms, and\\nparole violation charges. Officer Thatcher asked Mr. Bong if he was\\nstill on parole, but Mr. Bong refused to respond. According to Officer\\nThatcher, Mr. Bong began to exhibit signs of nervousness—heavy\\nbreathing, sweating, and refusal to acknowledge the officer. Because\\nOfficer Thatcher’s prior arrest of Mr. Bong had involved a firearm, the\\nofficer became concerned for his and Officer Springob’s safety. Officer\\nThatcher then asked Mr. Bong to exit the vehicle. Mr. Bong initially\\nrefused to respond, but he eventually exited the vehicle after Officer\\nThatcher repeated his order several times.\\n When Mr. Bong stepped out of the vehicle, Officer Thatcher\\nnoticed he was standing so that the right side of his body was turned\\naway. Officer Thatcher also observed a knife clipped into one of the\\nfront pockets of Mr. Bong’s jacket. Officer Thatcher removed the knife\\nfrom Mr. Bong’s pocket and told him to put his hands on top of the car.\\nHe then informed Mr. Bong that he was going to perform a patdown for\\nweapons. According to Officer Thatcher, Mr. Bong hesitated, but\\neventually put his hands on the top of the car.\\n Officer Thatcher reached up to place his hands on top of Mr.\\nBong’s hands on the car roof. As he did so, Mr. Bong attempted to back\\naway from the car and evade Officer Thatcher. Because he feared Mr.\\nBong might have a weapon, Officer Thatcher attempted to maintain\\ncontrol of Mr. Bong’s hands. The two struggled briefly, at which point\\nOfficer Thatcher tried to throw Mr. Bong to the ground while keeping\\ncontrol of his hands. Both men fell to the ground, still struggling. As\\n\\n 3\\n\\f Mr. Bong attempted to rise, Officer Thatcher kicked him approximately\\n three times in the abdomen in an attempt to knock him back down. At\\n that point, Officer Thatcher observed a black object resembling a\\n firearm fall to the ground. He immediately yelled “gun, gun!” Aplt.\\n Appx. at 93.\\n In response to Officer Thatcher’s shout, Officer Springob entered\\n the fray and knocked Mr. Bong to the ground. The officers were able to\\n subdue Mr. Bong and place him in handcuffs. After the officers\\n restrained Mr. Bong, they found a firearm on the ground beneath him.\\n\\nUnited States v. Bong, 596 F. App’x 607, 608–09 (10th Cir. 2014) (Bong I).\\n\\n b) Bong’s trial proceedings and sentencing\\n\\n On January 8, 2013, a federal grand jury indicted Bong on one count of being\\n\\na felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Bong “moved\\n\\nto suppress the evidence obtained during the traffic stop and his arrest, arguing it was\\n\\nobtained in violation of his Fourth Amendment rights.” 596 F. App’x at 609. Bong\\n\\n“acknowledged the officers had reasonable suspicion to initiate an investigative\\n\\ntraffic stop on the basis of the observed traffic violation,” but nevertheless “argued\\n\\nthe scope of the detention following the traffic stop and the force used by the officers\\n\\nwas unreasonable.” Id. “The district court expressed concern about the level of force\\n\\nused by the officers, but it ultimately concluded Officer Thatcher’s actions were\\n\\njustified under the circumstances” and thus “denied [the] motion to suppress.” Id.\\n\\n “The case proceeded to trial,” where the “Government advanced the theory\\n\\nthat . . . Bong dropped the gun during the scuffle with the officers.” Id. “Bong’s\\n\\ndefense was that another man, Jeremy Fisher, had dropped the gun where it was\\n\\nfound and the traffic stop and subsequent scuffle only coincidentally occurred at the\\n\\n\\n\\n 4\\n\\fsame location . . . Fisher had dropped the gun.” Id. At the conclusion of the\\n\\nevidence, the jury convicted Bong of the felon-in-possession charge.\\n\\n The presentence investigation report (PSR) applied a base offense level of 24.\\n\\nBut the PSR concluded that Bong “ha[d] at least three prior convictions for a violent\\n\\nfelony or serious drug offense, or both, which were committed on different\\n\\noccasions” and was therefore “an armed career criminal and subject to an enhanced\\n\\nsentence under the provisions of 18 U.S.C. § 924(e).” ROA, Vol. 2 at 11.\\n\\nConsequently, the PSR applied an offense level of 33 pursuant to U.S.S.G. § 4B1.4.\\n\\nThe PSR in turn concluded that Bong’s total criminal history score was 31, which\\n\\nresulted in a criminal history category of VI. Together, the total offense level of 33\\n\\nand the criminal history category of VI resulted in an advisory sentencing guidelines\\n\\nrange of 235 to 293 months.\\n\\n Bong did not file objections to the PSR, but did file a sentencing memorandum\\n\\nasking the district court to vary downward and impose a sentence of 187 months.\\n\\nThe district court denied that request and sentenced Bong to a term of imprisonment\\n\\nof 293 months.\\n\\n c) Bong’s direct appeal\\n\\n Bong filed a direct appeal challenging the district court’s denial of his motion\\n\\nto suppress. Bong also challenged the trial court’s admission at trial of two sets of\\n\\nstatements. On December 18, 2014, we issued an unpublished order and judgment\\n\\nrejecting Bong’s arguments and affirming Bong’s conviction. Bong I, 596 F. App’x\\n\\nat 614.\\n\\n 5\\n\\f Bong filed a petition for writ of certiorari with the Supreme Court. His\\n\\npetition was denied on April 20, 2015. Bong v. United States, 135 S. Ct. 1873\\n\\n(2015).\\n\\n d) Bong’s § 2255 proceedings\\n\\n On April 6, 2016, Bong filed a pro se motion to vacate, set aside, or correct\\n\\nsentence pursuant to 28 U.S.C. § 2255 asserting twenty-two separate grounds for\\n\\nrelief. Of relevance here, Ground One of the motion argued that in light of the\\n\\nSupreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015)\\n\\n(Johnson II), Bong’s prior convictions did not qualify as “violent felonies” or “crimes\\n\\nof violence” for enhanced sentencing purposes because they did not require the use,\\n\\nattempted use, or threatened use of physical force. ROA, Vol. 1 at 633. Ground Two\\n\\nalleged, in pertinent part, that Bong’s appellate counsel was ineffective for failing to\\n\\n“raise, brief and argue the . . . fast developing legal issues regarding [the] Armed\\n\\nCareer Criminal Act and enhanced sentence.” Id. at 634. Ground Twenty One of\\n\\nBong’s motion alleged that his trial counsel was ineffective for failing to challenge\\n\\nthe PSR or the convictions used to qualify Bong for the ACCA enhancement. Id.\\n\\nat 655.\\n\\n Bong subsequently moved for appointment of counsel. The district court\\n\\ngranted the motion, but solely for purposes of counsel assisting Bong “in obtaining\\n\\nrelief under Johnson [II].” Dist. Ct. Docket No. 74 at 2. Bong’s appointed counsel\\n\\nmoved to amend the § 2255 motion. In support, Bong’s counsel argued that, based\\n\\non the Supreme Court’s decision in Mathis v. United States, 136 S. Ct. 2243 (2016),\\n\\n 6\\n\\fit was “clear that . . . Bong’s 1988 Kansas burglary conviction should not, and cannot\\n\\nbe used as a predicate ‘violent felony’ for an Armed Career Criminal Act\\n\\nenhancement and it was error to be included as such by the [trial] Court,” and in turn\\n\\n“it was ineffective for his trial and appellate counsel to fail to raise this issue at the\\n\\ntime of his original sentencing and appeal.” ROA, Vol. 1 at 783. The government\\n\\nfiled a response arguing that Mathis did not apply retroactively to cases on collateral\\n\\nreview. Id. at 790. Bong’s appointed counsel in turn filed a reply brief challenging\\n\\nall of Bong’s prior convictions used to establish his ACCA status.\\n\\n On September 22, 2016, Bong filed a pro se pleading entitled “TROY\\n\\nBONG’S REPLY TO PLAINTIFF’S RESPONSE TO MOTION TO VACATE, SET\\n\\nASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U. S. C. 2255.” Id. at 831.\\n\\nIn that pro se pleading, Bong alleged, in pertinent part, that he submitted a request\\n\\nunder the Kansas Open Records Act (KORA), Kan. Stat. Ann. §§ 45-215 to 45-223,\\n\\nand that the City of Wichita, in response to his request, stated that “2 AXON videos\\n\\n(patrol car recording equipment) exist” from his stop and arrest “that are 18 minutes\\n\\nand 48 seconds long.” Id. at 884. Bong further alleged that “due to [his]\\n\\nincarceration he [wa]s unable to purchase or receive copies of these videos,” but that\\n\\nthe videos “w[ould] show that [he] never resisted or attempted to escape before\\n\\nThatcher threw him to the ground and began using force on him.” Id. Thus, Bong\\n\\nargued, “these videos constitute impeaching evidence which also show that the\\n\\nofficers gave perjured testimony at trial upon which the jury relied to convict [him].”\\n\\nId.\\n\\n 7\\n\\f On October 28, 2016, the district court issued a memorandum and order\\n\\ndenying Bong’s § 2255 motion. The district court rejected Bong’s Johnson II-based\\n\\narguments, noting that he “has at least three convictions under Kansas law for\\n\\nrobbery or aggravated robbery” that “qualify as violent felonies under the ACCA.”\\n\\nId. at 1051. More specifically, the district court noted that Bong “was convicted in a\\n\\nKansas district court on May 29, 1990, of three counts of robbery, three counts of\\n\\naggravated robbery, and one count of attempted robbery.” Id. at 1052. These\\n\\noffenses, the district court noted, “occurred on March 17, 1990; March 22, 1990;\\n\\nMarch 25, 1990 (two offenses); March 29, 1990; April 3, 1990; and April 6, 1990.”\\n\\nId. The district court in turn noted that “[a]t the time of the offenses, Kansas law\\n\\ndefined robbery as ‘the taking of property from the person or presence of another by\\n\\nthreat of bodily harm to his person or the person of another or by force,’” id. (quoting\\n\\nKan. Stat. Ann. § 21-3426 (1970)), and “[a]ggravated robbery was ‘a robbery\\n\\ncommitted by a person who is armed with a dangerous weapon or who inflicts bodily\\n\\nharm on any person in the course of such robbery.’” Id. (quoting Kan. Stat. Ann.\\n\\n§ 21-3427 (1970)). The district court thus concluded that “the elements of robbery\\n\\nunder Kansas law incorporate the ‘physical force’ necessary to constitute a violent\\n\\noffense under § 924(e)(2)(B).” Id. The district court also concluded that “[t]he\\n\\nelement of force or threat of bodily harm in Kansas robbery materially distinguishes\\n\\nthis offense from Johnson [II]” because “[t]he Kansas element of the intentional use\\n\\nof force or threat of bodily harm necessarily contemplates force capable of causing\\n\\npain or injury, placing this offense squarely within the violent felonies Congress had\\n\\n 8\\n\\fin mind in adopting the ACCA.” Id. at 1053. In addition, the district court noted that\\n\\nBong cited “no Kansas Supreme Court case finding the force element of robbery to\\n\\nbe satisfied by evidence of ‘any physical contact’ with the victim” and, “[t]o the\\n\\ncontrary, Kansas cases characterize robbery as a taking accomplished by violence or\\n\\nintimidation.” Id. at 1053-54. Lastly, the district court noted that Bong’s “seven or\\n\\nso robbery offenses (including aggravated robbery) were largely consolidated for\\n\\ncharging and sentencing,” but “occurred (with one exception) on different dates, and\\n\\nwere thus ‘committed on occasions different from one another.’” Id. at 1054\\n\\n(quoting United States v. Tisdale, 921 F.2d 1095, 1098 (10th Cir. 1990)).\\n\\n The district court rejected all of the other claims that Bong asserted, including\\n\\nthe various ineffective assistance of counsel and appellate counsel claims. In\\n\\naddition, the district court addressed Bong’s pro se reply brief in the following\\n\\nmanner:\\n\\n Defendant has filed a 158-page pro se Reply Brief (Dkt. 96) that\\n attempts to raise a multitude of claims in addition to those set forth in\\n the original or amended § 2255 motions. To the extent the Reply\\n attempts to raise new claims, those claims are barred because they have\\n been raised outside the applicable one-year statute of limitations. See\\n United States v. Guerrero, 488 F.3d 1313, 1316 (10th Cir. 2007)\\n (“When a § 2255 movant seeks to amend his pleading to include a new\\n claim, we will only entertain this claim if the amendment is made within\\n the one-year limit set by AEDPA.”). To the extent the Reply raises new\\n arguments (but not new claims) that were not set forth in his initial or\\n amended § 2255 motions, those arguments are considered waived. See\\n United States v. Herget, [585 F. App’x 948, 950] (10th Cir. 2014).\\n Nevertheless, the court has addressed the merits of the arguments\\n contained in the Reply Brief to the extent feasible.\\n\\nId. at 1047 n.1.\\n\\n\\n 9\\n\\f Lastly, the district court granted Bong a COA with respect to the issues raised\\n\\nin his § 2255 motion concerning his “classification as an armed career criminal and\\n\\nthe effectiveness of counsel with respect to that classification.” Id. at 1072. The\\n\\ndistrict court denied Bong a COA on the remaining issues asserted in his § 2255\\n\\nmotion. Id. at 1073.\\n\\n Bong filed a timely notice of appeal. He has since filed a motion to expand the\\n\\nCOA to include additional issues.\\n\\n II\\n\\n We begin by focusing on the ACCA-related issues on which the district court\\n\\ngranted Bong a COA. As outlined below, we conclude that Bong’s Kansas\\n\\nconvictions for robbery and aggravated robbery do not constitute “violent felonies”\\n\\nfor purposes of the ACCA.\\n\\n Standards of review\\n\\n “A motion to vacate a sentence under 28 U.S.C. § 2255 is generally the\\n\\nexclusive remedy for a federal prisoner seeking to attack the legality of detention.”\\n\\nUnited States v. Harris, 844 F.3d 1260, 1263 (10th Cir. 2017) (quotation marks and\\n\\nbrackets omitted). We review de novo the district court’s rulings on a § 2255 motion\\n\\nand its findings of fact for clear error. Id.\\n\\n “Whether a prior conviction satisfies the ACCA’s violent felony definition is a\\n\\nlegal question we review de novo.” United States v. Titties, 852 F.3d 1257, 1263\\n\\n(10th Cir. 2017).\\n\\n\\n\\n 10\\n\\f Was Bong properly sentenced under the ACCA?\\n\\n “[T]he ACCA mandates an enhanced sentence of imprisonment of not less\\n\\nthan 15 years when the violator of § 922(g) has ‘three previous convictions . . . for a\\n\\nviolent felony.’” United States v. Garcia, 877 F.3d 944, 946 (10th Cir. 2017)\\n\\n(quoting 18 U.S.C. § 924(e)(1)). The ACCA defines a “violent felony” as “any crime\\n\\npunishable by imprisonment for a term exceeding one year” that falls within the\\n\\nscope of one of three enumerated clauses: (1) the elements clause, which states: “has\\n\\nas an element the use, attempted use, or threatened use of physical force against the\\n\\nperson of another,” § 924(e)(2)(B)(i); (2) the enumerated offenses clause, which\\n\\nincludes any crime that “is a categorical match to the generic offenses of ‘burglary,\\n\\narson, or extortion,’” Harris, 844 F.3d at 1263 (quoting § 924(e)(2)(B)(ii)); or (3) the\\n\\nresidual clause, which includes any crime that “otherwise involves conduct that\\n\\npresents a serious potential risk of physical injury to another.” 18 U.S.C.\\n\\n§ 924(e)(2)(B)(ii).\\n\\n In Johnson II, the Supreme Court held that the ACCA’s residual clause was\\n\\nunconstitutionally vague and “that imposing an increased sentence under the residual\\n\\nclause . . . violates the Constitution’s guarantee of due process.” 135 S. Ct. at 2563.\\n\\nThe result is that, for a prior conviction to constitute a “violent felony” under the\\n\\nACCA, it must either be one of the enumerated offenses in § 924(e)(2)(B)(ii) or it\\n\\nmust fall within the elements clause in § 924(e)(2)(B)(i). See Harris, 844 F.3d\\n\\nat 1263. In this case, it is undisputed that Bong’s prior Kansas convictions for\\n\\nrobbery and aggravated robbery do not fall within the enumerated-offenses clause\\n\\n 11\\n\\fand, thus, must fall within the elements clause in order to constitute “violent\\n\\nfelonies” for purposes of the ACCA.\\n\\n “To determine if a prior conviction qualifies as a violent felony” under the\\n\\nACCA’s elements clause, “we apply the categorical approach, focusing on the\\n\\nelements of the crime of conviction, not the underlying facts.” Harris, 844 F.3d\\n\\nat 1263 (citing Descamps v. United States, 133 S. Ct. 2276, 2283 (2013)). More\\n\\nspecifically, we must determine whether the Kansas statutes of conviction “ha[ve] as\\n\\nan element the use, attempted use, or threatened use of physical force against the\\n\\nperson of another.” See § 924(e)(2)(B)(i). “This inquiry requires application of both\\n\\nfederal law and [Kansas] state law.” Harris, 844 F.3d at 1264. “Federal law defines\\n\\nthe meaning of the phrase ‘use, attempted use, or threatened use of physical force’ in\\n\\n§ 924(e)(2)(B)(i).” Id. “And state law defines the substantive elements of the crime\\n\\nof conviction.” Id.\\n\\n The terms employed in the ACCA’s elements clause have, for the most part,\\n\\nbeen clearly defined by the Supreme Court. The term “use,” as employed in the\\n\\nACCA’s elements clause, “requires active employment” rather “than negligent or\\n\\nmerely accidental conduct.” Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). In turn, the\\n\\nterm “physical,” as employed in the ACCA’s elements clause, means “force exerted\\n\\nby and through concrete bodies—distinguishing physical force from, for example,\\n\\nintellectual force or emotional force.” Johnson v. United States, 559 U.S. 133, 138\\n\\n(2010) (Johnson I). As for the term “force,” the Court rejected the traditional\\n\\ndefinition (i.e., that force can be satisfied by even the slightest offensive touching)\\n\\n 12\\n\\fand instead held that in the context of the ACCA, the phrase “physical force” means\\n\\n“violent force”—“force capable of causing physical pain or injury to another person.”\\n\\nId. at 140. Thus, the ACCA’s elements clause refers to the active, attempted, or\\n\\nthreatened employment of violent force—force capable of causing physical pain or\\n\\ninjury—against the person of another.\\n\\n Recently, in Stokeling v. United States, 586 U.S. –, 2019 WL 189343 (2019),\\n\\nthe Supreme Court revisited the ACCA’s elements clause to determine whether a\\n\\nFlorida robbery conviction constituted a predicate offense under the ACCA. In doing\\n\\nso, the Court held “that the elements clause encompasses robbery offenses that\\n\\nrequire the criminal to overcome the victim’s resistance.” 2019 WL 189343 at *3.\\n\\nThe Court explained that “the force necessary to overcome a victim’s physical\\n\\nresistance is inherently ‘violent’ in the sense contemplated by Johnson[ I], and\\n\\n‘suggest[s] a degree of power that would not be satisfied by the merest touching.’”\\n\\nId. at *7 (quoting Johnson I, 559 U.S. at 139). “This is true,” the Court noted,\\n\\n“because robbery that must overpower a victim’s will—even a feeble or weak-willed\\n\\nvictim—necessarily involves a physical confrontation and struggle.” Id. The Court\\n\\nstated that a physical confrontation or “altercation need not cause pain or injury or\\n\\neven be prolonged” because “it is the physical contest between the criminal and the\\n\\nvictim that is itself ‘capable of causing physical pain or injury.’” Id. (quoting\\n\\nJohnson I, 559 U.S. at 140). Lastly, and significantly for purposes of our case, the\\n\\nCourt made it a point to emphasize that the “[m]ere ‘snatching of property from\\n\\nanother’ will not suffice” to constitute robbery under Florida law. Id. at *9.\\n\\n 13\\n\\f Having outlined the meaning of the ACCA’s elements clause, “[w]e now apply\\n\\nthese principles to [the Kansas] robbery statute to determine whether it ‘has as an\\n\\nelement the use, attempted use, or threatened use of physical force against the person\\n\\nof another.’” Id. (quoting § 924(e)(2)(B)(i)). In Harris, we outlined a “two-step\\n\\ninquiry” for resolving whether a state’s “robbery statute requires physical force as\\n\\nthat term is used in the ACCA.” 844 F.3d at 1264. First, “we must identify the\\n\\nminimum ‘force’ required by [the applicable state] law for the crime of robbery.” Id.\\n\\nSecond, we must “then determine if that force categorically fits the [ACCA’s]\\n\\ndefinition of physical force.” Id. (italics in original). The Supreme Court has\\n\\nemphasized “that in construing the minimum culpable conduct, such conduct only\\n\\nincludes that in which there is a ‘realistic probability, not a theoretical possibility’ the\\n\\nstate statute would apply.” Id. (quoting Moncrieffe v. Holder, 133 S. Ct. 1678, 1685\\n\\n(2013)). “Decisions from the state supreme court best indicate a ‘realistic\\n\\nprobability,’ supplemented by decisions from the intermediate-appellate courts.” Id.\\n\\n(quoting Moncrieffe, 133 S. Ct. at 1685).\\n\\n Bong’s ACCA sentence was based, in pertinent part, on three Kansas state\\n\\nrobbery convictions and three Kansas state aggravated robbery convictions, all of\\n\\nwhich occurred in April of 1990 (but were based on separate incidents). At the time\\n\\nof those convictions, the Kansas robbery statute provided as follows: “Robbery is the\\n\\ntaking of property from the person or presence of another by threat of bodily harm to\\n\\nhis person or the person of another or by force.” Kan. Stat. Ann. § 21-3426 (1988).\\n\\nAnd the Kansas aggravated robbery statute provided: “Aggravated robbery is a\\n\\n 14\\n\\frobbery committed by a person who is armed with a dangerous weapon or who\\n\\ninflicts bodily harm upon any person in the course of such robbery.” Kan. Stat. Ann.\\n\\n§ 21-3427 (1988).\\n\\n In the unpublished decision in United States v. Nicholas, 686 F. App’x 570\\n\\n(10th Cir. 2017), a two-judge panel of this court addressed whether the same Kansas\\n\\nrobbery statute required “physical force” as defined in the ACCA. In doing so, the\\n\\npanel in Nicholas “look[ed] . . . to Kansas state law to define the substantive\\n\\nelements of Kansas robbery and, in particular, the requirements of ‘force’ or ‘threat\\n\\nof bodily harm.’” Id. at 574. The panel took particular note of State v. McKinney,\\n\\n961 P.2d 1 (Kan. 1998), in which the Kansas Supreme Court reviewed the\\n\\ndefendant’s robbery conviction for purse-snatching. The robbery victim in the case\\n\\ntestified that she had cashed some checks at a bank and walked outside with a “thing\\n\\nthat [she] had the money in” when, as she was opening the door to her car, McKinney\\n\\nappeared, “pushed [her] up against a door,” “grabbed [the] thing [containing the\\n\\nmoney] . . . and took out.” 961 P.2d at 4. “McKinney told police that he had\\n\\nsnatched [the victim’s] purse from her arm, but he denied pushing her,” and he\\n\\nconsequently “argue[d] that the jury should have been instructed on theft as a lesser\\n\\nincluded offense of robbery.” Id. at 8. The Kansas Supreme Court rejected\\n\\nMcKinney’s argument, concluding that even if he snatched the victim’s purse without\\n\\npushing her, simply “snatching the purse away from [the victim] constituted the\\n\\nthreat of bodily harm, which is an element of robbery.” Id. Although the panel in\\n\\nNicholas “acknowledge[d] that many, if not most, Kansas robbery convictions will\\n\\n 15\\n\\flikely involve a greater degree of force than mere purse-snatching,” it nevertheless\\n\\nconcluded that “[i]n the context of Kansas robbery, McKinney establishes th[e]\\n\\nlowest level of culpable conduct.”1 686 F. App’x at 575.\\n\\n The panel in Nicholas in turn “conclude[d] that Kansas robbery does not\\n\\nnecessarily require the use, attempted use, or threatened use of violent force against\\n\\nthe person of another.” Id. at 576. In doing so, the panel in Nicholas noted that\\n\\n“[s]everal circuit courts have concluded that, because a state’s robbery statute may be\\n\\nviolated with minimal actual force, it does not qualify as a violent felony under the\\n\\nACCA.” Id. at 575 (citing cases from the Fourth, Eighth, and Ninth Circuits\\n\\nconstruing Arkansas, Massachusetts, Missouri and North Carolina robbery statutes).\\n\\nIn particular, the Nicholas panel noted that the Ninth Circuit in United States v.\\n\\nParnell, 818 F.3d 974, 979 (9th Cir. 2016) had held, in the context of examining a\\n\\nMassachusetts armed robbery statute, that “the snatching of a purse from a victim’s\\n\\nhand . . . does not constitute force ‘capable of causing physical pain or injury to\\n\\nanother person.’” 818 F.3d at 979 (quoting Johnson II, 559 U.S. at 140).\\n\\n Ultimately, the panel in Nicholas concluded that “the minimum force\\n\\nnecessary under Kansas law to support a robbery conviction” does not “categorically\\n\\nfit[] the definition of physical force under the ACCA.” Id. at 575. In other words,\\n\\n\\n 1\\n In reaching this conclusion, the panel in Nicholas noted that it “ha[d] not\\nidentified a general statement from Kansas courts as to the degree of force required to\\nsupport a Kansas robbery conviction.” 686 F. App’x at 576 n.5. Indeed, the panel\\nnoted that most of the Kansas cases “addressing the force element of Kansas robbery\\nhave done so in the context of determining the statute’s temporal requirements, not\\nits degree-of-force requirements.” Id.\\n 16\\n\\fthe panel held that “[b]ecause Kansas robbery does not require the use, attempted\\n\\nuse, or threatened use of violent force as defined in Johnson, it cannot serve as a\\n\\npredicate offense for purposes of the ACCA’s sentence enhancement provisions.” Id.\\n\\nat 576.\\n\\n Not surprisingly, the parties in the case before us have divergent views\\n\\nregarding Nicholas. Bong argues that we should adopt the reasoning in Nicholas\\n\\nbecause, although “not precedential, it is persuasive and applies here.” Aplt. Br.\\n\\nat 48. The government, in response, argues that Nicholas “was wrongly decided.”\\n\\nAplee. Br. at 16. To begin with, the government asserts that, “contrary to the panel’s\\n\\nnote in Nicholas that it could not identify a general statement from Kansas courts as\\n\\nto the degree of force necessary to constitute robbery,” there is in fact “sufficient\\n\\nguidance” in Kansas case law “establishing the force necessary to support a robbery\\n\\nconviction.” Aplee. Br. at 30. In particular, the government points to the following\\n\\nstatement made by the Kansas Supreme Court in State v. Aldershof, 556 P.2d 371\\n\\n(Kan. 1976):\\n\\n [T]o constitute the crime of robbery by forcibly taking money\\n from the person of its owner, it is necessary that the violence to the\\n owner must either precede or be contemporaneous with the taking of the\\n property and robbery is not committed where the thief has gained\\n peaceable possession of the property and uses no violence except to\\n resist arrest or to effect his escape.\\n\\nId. at 375. The government also cites various dictionaries for the proposition that\\n\\n“[t]he word ‘violence’ connotes more than mere physical contact.” Aplee. Br. at 30.\\n\\n\\n\\n\\n 17\\n\\fThus, the government argues, “[i]t is plain under Kansas law that gaining ‘peaceable’\\n\\npossession of property is not robbery; rather, it is theft.” Id. at 31.\\n\\n Notably, the very same argument was made by the government in Nicholas and\\n\\nthe panel in that case rejected it, stating as follows:\\n\\n The primary case relied upon by the government, State v.\\n Aldershof, 556 P.2d 371 (1976), uses the term “violence” in reference to\\n robbery while answering the question of when force must occur, not\\n what degree of force is required. Id. at 373-75. Moreover, insofar as\\n Aldershof appears to conflate “violence” with the force necessary to\\n support a robbery conviction, those concepts are later divorced in State\\n v. Peck, 703 P.2d 781 (1985). See id. at 787 (“But the jury found there\\n was no violence used in the commission of the robbery . . . . Since there\\n was no direct evidence as to violence occurring with that taking, the\\n jury acquitted Peck on the charge of aggravated robbery, and instead\\n found him guilty of simple robbery.”).\\n\\n More importantly, the McKinney court explicitly relied on\\n Aldershof in concluding that mere purse-snatching can support a\\n conviction for Kansas robbery. See McKinney, 961 P.2d at 9. We must\\n therefore reject any interpretation of Aldershof that would be\\n inconsistent with the holding in McKinney. See Jackson v. Harris, 43\\n F.2d 513, 516-17 (10th Cir. 1930) (“Where such decisions are in\\n conflict, the national courts will follow the latest settled adjudications of\\n the highest court of the state rather than the earlier ones . . . .”). In\\n doing so, we acknowledge that many, if not most, Kansas robbery\\n convictions will likely involve a greater degree of force than mere\\n purse-snatching; however, our analysis must focus on the lowest level of\\n conduct that can support a conviction under the statute. See Moncrieffe\\n v. Holder, 569 U.S. 184[, 190-91] (2013) (“Because we examine what\\n the state conviction necessarily involved, not the facts underlying the\\n case, we must presume that the conviction ‘rested upon nothing more\\n than the least of the acts’ criminalized, and then determine whether even\\n those acts [would constitute violent felonies].” (quoting Johnson [II],\\n 559 U.S. at 137) (alterations omitted)). In the context of Kansas\\n robbery, McKinney establishes that lowest level of culpable conduct.\\n\\n686 F. App’x at 575 (parallel citations omitted).\\n\\n\\n\\n 18\\n\\f The government also argues that the panel in Nicholas “simply established a\\n\\nquantum of force standard greater than that set by Johnson I.” Aplee. Br. at 32.\\n\\nMore specifically, the government argues that “the panel in Nicholas arguably gave\\n\\nlittle credit to the adjective ‘capable’ in Johnson I, in turn concluding that purse\\n\\nsnatching is simply ‘incapable’ of causing physical injury or pain to another person.”\\n\\nId. at 33. “That,” the government asserts, “is far too broad of a conclusion to reach.”\\n\\nId. According to the government, “when considering that grabbing is sufficient to\\n\\ncause physical injury, it is reasonable to conclude that purse snatching—which\\n\\nnecessarily involves grabbing—is similarly sufficient force to cause physical injury.”\\n\\nId.\\n\\n The problem with the government’s argument is that it treats “purse snatching”\\n\\nas a singular type of action when, as case law clearly demonstrates, it can be\\n\\naccomplished in a variety of ways and with varying degrees of physical force. Of\\n\\ncourse, it is easy to conceive of a particular act of purse-snatching that involves force\\n\\ncapable of causing physical harm to the victim—or, indeed, that actually causes\\n\\nphysical harm to the victim. But that was not the task faced by the panel in Nicholas\\n\\nor by us. Rather, the task is to “identify the minimum ‘force’ required by [Kansas]\\n\\nlaw for the crime of robbery.” Harris, 844 F.3d at 1264. And the panel in Nicholas\\n\\nconcluded, correctly in our view, that this minimum level of force was defined by the\\n\\nspecific act of purse-snatching that occurred in McKinney—an act that, at least\\n\\naccording to the defendant, involved the mere snatching of the purse (or whatever the\\n\\nobject was that actually contained the money) without any application of force\\n\\n 19\\n\\fdirectly to the victim, and also, importantly, without any resistance by or injury to the\\n\\nvictim. See generally State v. Warwick, 654 P.2d 403, 405 (Kan. 1982) (holding that\\n\\n“neither robbery nor aggravated robbery require bodily contact or the actual\\n\\napplication of force to the person of another as a necessary element for the\\n\\ncommission of those crimes”), abrogated on other grounds by State v. Adams, 744\\n\\nP.2d 833 (Kan. 1987). Thus, we agree with the panel in Nicholas that robbery in\\n\\nKansas can be accomplished with minimal force that falls short of the “violent force”\\n\\nrequired under the ACCA’s elements clause.\\n\\n The government also suggests that Nicholas is inconsistent with our published\\n\\nopinion in Harris. The government notes that in Harris, the “panel rejected the Ninth\\n\\nCircuit’s decision in” Parnell, but in contrast the court in Nicholas “relied heavily on\\n\\nParnell to support its conclusion that Kansas’ robbery statute runs afoul of\\n\\nJohnson I.” Aplee. Br. at 34. Contrary to the government’s suggestion, however,\\n\\nNicholas and Harris are consistent in their treatment of Parnell. Both Nicholas and\\n\\nHarris recognized that Parnell dealt with a robbery conviction under Massachusetts\\n\\nlaw and both noted that under Massachusetts law, a defendant may be convicted of\\n\\nrobbery without using violence or intimidation of any sort. Nicholas and Harris came\\n\\nto different outcomes because each case addressed a different state statute. In\\n\\nNicholas, the panel concluded that robbery under Kansas law was similar to robbery\\n\\n\\n\\n\\n 20\\n\\funder Massachusetts law, whereas the panel in Harris concluded that robbery under\\n\\nColorado law differed from robbery under Massachusetts law. 2\\n\\n In sum, we conclude that the government has failed to establish that the panel\\n\\nin Nicholas erred in concluding that “the minimum force necessary under Kansas law\\n\\nto support a robbery conviction” does not “categorically fit[] the definition of\\n\\nphysical force under the ACCA.” 686 F. App’x at 575. In turn, we adopt the\\n\\nreasoning of Nicholas and conclude that Bong’s prior Kansas convictions for robbery\\n\\ncannot serve as predicate offenses for purposes of the ACCA’s sentence enhancement\\n\\nprovisions.\\n\\n The question then becomes whether we should proceed to address the other\\n\\nconvictions that were cited in the PSR as predicate offenses, or whether we should\\n\\ninstead remand the case to the district court to determine in the first instance whether\\n\\nthose convictions are countable predicate offenses. Because the parties have briefed\\n\\nthe question of whether Bong’s Kansas state aggravated robbery convictions can\\n\\nserve as predicate offenses under the ACCA, we will proceed to address that\\n\\nquestion.\\n\\n\\n\\n 2\\n As Bong notes in his Rule 28(j) letter, the First Circuit recently concluded\\nthat a New York conviction for attempted robbery in the second degree was not a\\n“crime of violence” for purposes of the career offender guidelines because “there is a\\nrealistic probability that [the defendant’s] conviction was for attempting to commit\\nan offense for which the least of the acts that may have constituted that offense\\nincluded ‘purse snatching, per se.’” United States v. Steed, 879 F.3d 440, 450 (1st\\nCir. 2018) (quoting People v. Santiago, 405 N.Y.S.2d 572, 579 (N.Y. App. Div.\\n1978)).\\n\\n 21\\n\\f As noted, Bong has three prior convictions for violating the Kansas aggravated\\n\\nrobbery statute. At the time of his convictions, that statute provided: “Aggravated\\n\\nrobbery is a robbery committed by a person who is armed with a dangerous weapon\\n\\nor who inflicts bodily harm upon any person in the course of such robbery.” Kan.\\n\\nStat. Ann. § 21-3427 (1970). This statutory language makes clear that an aggravated\\n\\nrobbery is (a) a robbery (as defined in the Kansas robbery statute) committed by a\\n\\nperson who (b) is armed with a dangerous weapon or who inflicts bodily harm upon\\n\\nany person in the course of such robbery.3 Having concluded that robbery under\\n\\nKansas law is not a “violent crime” for purposes of the ACCA, the question remains\\n\\nwhether the second element described above is sufficient to render an aggravated\\n\\nrobbery a “violent crime.”\\n\\n In answering this question, we begin and ultimately end by focusing on\\n\\nwhether being armed with a dangerous weapon during the course of a robbery is\\n\\nsufficient to render the crime a “violent crime” for purposes of the ACCA. The\\n\\nKansas aggravated robbery statute does not define “armed,” and we have not found\\n\\nany Kansas cases expressly defining the term.4 Turning to dictionary definitions,\\n\\n\\n 3\\n It appears clear that these two alternative methods of rendering a robbery an\\n“aggravated robbery” are not elements of different offenses, but rather only different\\nmeans by which a person commits a single armed robbery offense. See Mathis 136\\nS. Ct. at 2253; State v. Brown, 401 P.3d 611, 622 (Kan. 2017) (“aggravated robbery\\ncan be committed by one who either ‘is armed with a dangerous weapon’ or ‘inflicts\\nbodily harm on any person in the course of such robbery’”).\\n 4\\n The Kansas pattern jury instructions stated that it was not necessary for the\\ndefendant to have exhibited the dangerous weapon to the victim, and that whether or\\n (Continued . . .)\\n 22\\n\\fBlack’s Law Dictionary defines “armed” as “[e]quipped with a weapon” or\\n\\n“[i]nvolving the use of a weapon.” Armed, Black’s Law Dictionary (10th ed. 2014).\\n\\nSimilarly, the Oxford English Dictionary defines “armed” as “[e]quipped with or\\n\\ncarrying a weapon or weapons (now typically firearms); involving the use of\\n\\nweaponry.” Armed, Oxford English Dictionary (online ed. 2017). Presumably, being\\n\\n“equipped” with a weapon is the same as “possessing” a weapon. In other words,\\n\\nsimple possession of a weapon, rather than actual use of a weapon, is a sufficient\\n\\nmeans of being “armed” for the purposes of the Kansas aggravated robbery statute.\\n\\nAnd that conclusion is supported by State v. Buggs, 547 P.2d 720 (Kan. 1976), where\\n\\nthe Kansas Supreme Court held that the Kansas aggravated robbery “statute requires\\n\\nonly that the robber be ‘armed with’ a dangerous weapon, not that he use it or that the\\n\\nvictim be aware of its presence.” Id. at 725.\\n\\n We in turn conclude that merely being “armed” with a weapon during the\\n\\ncourse of a robbery is not sufficient to render the crime a “violent crime” for\\n\\npurposes of the ACCA. For example, take the simple robbery that was committed in\\n\\nMcKinney—i.e., the purse-snatching. Had the defendant in that case been armed\\n\\nwith a weapon, even a concealed one, at the time of the purse-snatching, that would\\n\\nhave been sufficient to render the crime an aggravated robbery under Kansas law.\\n\\nBut, as with the simple crime of purse snatching, nothing about the defendant’s mere\\n\\npossession of a firearm (or another deadly weapon) would have necessarily caused\\n\\n\\nnot the defendant was armed with a dangerous weapon was determined from the\\nvictim’s point of view. State v. Holbrook, 932 P.2d 958, 961 (Kan. 1997).\\n 23\\n\\fthe crime to involve “the use, attempted use, or threatened use of violent force\\n\\nagainst the person of another.” § 924(e)(2)(B)(i).\\n\\n Notably, the Ninth Circuit addressed a similar question in Parnell and\\n\\nconcluded that “[t]he mere fact that an individual is armed . . . does not mean he or\\n\\nshe has used the weapon, or threatened to use it, in any way.” 818 F.3d at 980. Like\\n\\nthe Kansas aggravated robbery statute at issue here, the Massachusetts aggravated\\n\\nrobbery statute that was before the court in Parnell did “not require a weapon to be\\n\\nused or displayed, or even that the victim be aware of it.” Id. The Ninth Circuit thus\\n\\nconcluded that “[t]here is a material difference between the presence of a weapon,\\n\\nwhich produces a risk of violent force, and the actual or threatened use of such\\n\\nforce.” Id. (emphasis in original). “Only the latter,” the Ninth Circuit held, “falls\\n\\nwithin the ACCA’s force clause.”5 Id.\\n\\n To be sure, the government in this case acknowledges Parnell, but states that it\\n\\n“disagrees with this decision.” Aplee. Br. at 36 n.11. Notably, however, the\\n\\ngovernment makes no attempt to explain why Parnell’s holding on this point was\\n\\nincorrect.\\n\\n In United States v. Redrick, 841 F.3d 478 (D.C. Cir. 2016), the District of\\n\\nColumbia Circuit distinguished Parnell, but it did so on the basis that the statute of\\n\\n\\n\\n 5\\n As Bong notes in his Rule 28(j) letter, the Ninth Circuit also reached the\\nsame conclusion in a more recent case, i.e., United States v. Jones, 877 F.3d 884 (9th\\nCir. 2017) (holding that a conviction under Arizona’s armed robbery statute did not\\ncategorically qualify as a violent felony conviction under the ACCA’s force clause).\\n\\n 24\\n\\fconviction in the case before it—i.e., Maryland armed robbery—required “that the\\n\\ndefendant commit the crime with the use of a dangerous or deadly weapon.” Id.\\n\\nat 484 (italics in original). Quite clearly, had the Kansas aggravated robbery statute\\n\\nrequired the use of a dangerous or deadly weapon, then Bong’s prior aggravated\\n\\nrobbery convictions would constitute predicate offenses under the ACCA. But, as\\n\\nnoted, the Kansas aggravated robbery statute does not include this requirement. We\\n\\ntherefore conclude that the Kansas crime of aggravated robbery is not categorically a\\n\\n“violent crime” for purposes of the ACCA.\\n\\n In light of our conclusions regarding Bong’s prior Kansas convictions for\\n\\nrobbery and aggravated robbery, we reverse the district court’s denial of Bong’s\\n\\n§ 2255 motion and remand to the district court for further proceedings. On remand,\\n\\nthe district court will need to determine in the first instance whether Bong’s\\n\\nremaining convictions are sufficient to support application of the ACCA.\\n\\nSpecifically, Bong has the following convictions that might constitute “crimes of\\n\\nviolence” for purposes of the ACCA: (1) a 1988 Kansas conviction for burglarizing a\\n\\nresidence; (2) a 1990 Kansas conviction for aggravated escape from custody (he\\n\\nescaped from the Sedgwick County Community Corrections Center); (3) a 1999\\n\\nKansas conviction for “Riot (Misd)”; and (4) a 1999 Kansas conviction for\\n\\ntrafficking in contraband in a correctional facility. Bong briefly addresses the\\n\\nburglary and trafficking convictions in his opening appellate brief, but we conclude it\\n\\nis proper for the district court to consider these prior convictions in the first instance.\\n\\n Ineffective assistance of trial and appellate counsel—ACCA sentence\\n\\n 25\\n\\f The district court also granted Bong a COA on the question of whether his trial\\n\\nand appellate counsel were ineffective for failing to object to the district court’s\\n\\nimposition of the ACCA sentence. Having concluded that the district court erred in\\n\\nbasing Bong’s ACCA sentence on his prior Kansas robbery and aggravated robbery\\n\\nconvictions, it is unnecessary for us to address this ineffective assistance claim.\\n\\n III\\n\\n We now turn to the two issues as to which we granted Bong a COA:\\n\\n(1) whether the district court erred in rejecting his claim that his trial counsel was\\n\\nineffective for failing to independently investigate the facts of the alleged crime; and\\n\\n(2) whether the district court erred in summarily dismissing his claim regarding the\\n\\nallegedly newly-discovered videos of his stop and arrest (which his counsel now\\n\\ncharacterizes as a Brady/Giglio claim).6\\n\\n Ineffective assistance of trial counsel – failure to investigate\\n\\n Bong alleged in his original pro se § 2255 motion, and in greater detail in his\\n\\npro se reply brief, that his trial counsel was ineffective for failing to investigate the\\n\\nfacts of the traffic stop, Bong’s arrest, and Bong’s alleged possession of a firearm.\\n\\nBong argues that had his trial counsel “conducted even a minimally adequate\\n\\ninvestigation, trial counsel would have discovered and presented multiple witnesses\\n\\n\\n 6\\n See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding “that the\\nsuppression by the prosecution of evidence favorable to an accused upon request\\nviolates due process where the evidence is material either to guilt or to punishment”);\\nGiglio v. United States, 405 U.S. 150, 154 (1972) (mandating disclosure of evidence,\\nunder Brady, that affects the credibility of a witness whose testimony “may well be\\ndeterminative of guilt or innocence”).\\n 26\\n\\fto corroborate that Jeremy Fisher, not . . . Bong, owned and possessed the firearm\\n\\nand ammunition recovered by the police.” Motion to Expand COA at 2–3. Bong in\\n\\nturn argues that he “was entitled to a hearing to prove [this] claim.” Id. at 3.\\n\\nRelatedly, Bong argues that “the district court erred in disregarding the factual\\n\\nallegations set forth in [his] second pro se pleading.” Id. Although Bong concedes\\n\\nthat he titled this second pro se pleading a “Reply,” he argues this was “immaterial”\\n\\nbecause “pro se pleadings must be liberally construed” and thus the district court was\\n\\nobligated “to construe the ‘Reply’ as an amendment.” Id.\\n\\n The district court considered and rejected Bong’s claim that his trial counsel\\n\\nfailed to conduct an adequate investigation. ROA, Vol. 1 at 1067–68. In doing so,\\n\\nthe district court stated:\\n\\n Defendant’s § 2255 motion fails to identify any material matters\\n that defense counsel failed to investigate. His massive Reply Brief\\n identifies a multitude of issues that defendant now claims should have\\n been further investigated. But defendant fails to address the significant\\n evidence weighing against his claim that his statement was involuntary,\\n fails to show that counsel’s performance fell below an objective\\n standard of reasonableness, and fails to show that the alleged failure to\\n investigate likely made a difference in the outcome.\\n\\nId. at 1068.\\n\\n [D]efendant fails to cite any material evidence that defense\\n counsel failed to discover or to address in the course of the proceedings.\\n Defendant now claims a number of other things could have been\\n investigated, but most of these items have nothing to do with the issue\\n of whether defendant possessed the firearm that was found during the\\n stop. Defendant has now produced an affidavit of an individual named\\n Roger Schmidt, who says that he talked to defendant and his wife on the\\n night of the stop. Even if such evidence had been presented, however,\\n there is no reason to believe it could have affected the outcome of the\\n trial. Similarly, defendant now presents a statement from an individual\\n\\n 27\\n\\f named Richard Sipes, who claims to have seen defendant at the\\n suspected drug house on the evening of the stop, and who says “there\\n was not a gun around.” But in addition to obvious problems with this\\n witness’s credibility, his statement shows no basis for knowing whether\\n defendant had a gun in his waistband or in his car. Any failure to\\n discover such testimony did not prejudice defendant. Essentially,\\n defendant’s claim that additional investigation would have produced\\n evidence to exonerate him is unsupported speculation.\\n\\nId. at 1069–70 (citations omitted). At no point did Bong expressly request an\\n\\nevidentiary hearing on his failure-to-investigate claim and the district court in turn\\n\\ndid not address the need for a hearing.\\n\\n We review de novo Bong’s ineffective assistance of counsel claim and, in\\n\\ndoing so, accept any underlying factual findings made by the district court unless\\n\\nthey are clearly erroneous. United States v. Watson, 766 F.3d 1219, 1226 (10th Cir.\\n\\n2014).\\n\\n We conclude, with one exception, that the district court properly rejected\\n\\nBong’s allegations of ineffective assistance as either meritless or time-barred. That\\n\\none exception concerns Bong’s allegation that his trial counsel was ineffective for\\n\\nfailing to request copies of any available video recordings of the traffic stop and his\\n\\narrest. As we have noted, Bong alleged in his pro se reply brief that at some point in\\n\\n2016, while he was incarcerated, he contacted the City of Wichita and requested\\n\\ncopies of evidence relevant to his case under KORA. In response, the City of\\n\\nWichita allegedly acknowledged that “2 AXON videos (patrol car recording\\n\\nequipment) exist that are 18 minutes and 48 second long.” Id. at 884. However, the\\n\\nCity of Wichita allegedly refused to provide Bong with a copy of the videos due to\\n\\n\\n 28\\n\\fthe fact that he was incarcerated. Id. Bong now argues that these videos necessarily\\n\\nmust have been of his traffic stop and arrest and were improperly suppressed by the\\n\\npolice department or prosecution. Bong in turn alleges that these videos “will show\\n\\nthat [he] never resisted or attempted to escape before Thatcher just threw him to the\\n\\nground and began using force on him.” Id.\\n\\n The district court did not expressly address these allegations in its order\\n\\ndenying Bong’s § 2255 motion. Instead, the district court treated these allegations as\\n\\nuntimely because they were raised for the first time in Bong’s pro se reply brief and\\n\\nthus, in the district court’s view, fell outside of the one-year time limit set by\\n\\nAEDPA. ROA, Vol. 1 at 1047 n.1 (“To the extent the Reply attempts to raise new\\n\\nclaims, those claims are barred because they have been raised outside the applicable\\n\\none-year statute of limitations.”). The district court failed to consider, however, the\\n\\nfact that Bong’s § 2255 motion was filed within one year after Bong allegedly\\n\\ndiscovered this new evidence. Based upon the materials contained in the record on\\n\\nappeal, we conclude that the district court should have, at a minimum, determined\\n\\n“the date on which the facts supporting the claim . . . could have been discovered\\n\\nthrough the exercise of due diligence.” 28 U.S.C. § 2255(f)(4) (“The limitation\\n\\nperiod shall run from the latest of . . . the date on which the facts supporting the\\n\\nclaim or claims presented could have been discovered through the exercise of due\\n\\n\\n\\n\\n 29\\n\\fdiligence.”). Consequently, we reverse on this narrow issue of ineffective assistance\\n\\nof trial counsel and remand to the district court for further consideration.7\\n\\n Brady/Giglio claims – suppression of video evidence\\n\\n Bong also challenges the district court’s dismissal of his related Brady/Giglio\\n\\nclaim. Generally speaking, “[w]e review de novo the existence of a Brady violation.”\\n\\nUnited States v. Wells, 873 F.3d 1241, 1259 (10th Cir. 2017). “Proving a Brady\\n\\nclaim requires the defendant to show by a preponderance of the evidence (1) that the\\n\\ngovernment suppressed evidence, (2) that the evidence was favorable to the\\n\\ndefendant, and (3) that the evidence was material.” Id.\\n\\n Bong alleged that “[t]hrough local law enforcement actions attributable to the\\n\\nGovernment, the Government suppressed the video recordings” of the traffic stop and\\n\\nhis arrest and that “Officer Thatcher presented false testimony denying that any video\\n\\nrecordings existed.” Aplt. Br. at 44. The district court did not expressly address this\\n\\nclaim in its order denying Bong’s § 2255 motion, but instead concluded that it was a\\n\\nnew claim raised for the first time in Bong’s pro se reply brief and was “barred\\n\\nbecause [it was] raised outside the applicable one-year statute of limitations.” ROA,\\n\\nVol. 1 at 1047 n.1.\\n\\n As with Bong’s related ineffective assistance claim, the district court failed to\\n\\nconsider the fact that Bong’s § 2255 motion was filed within one year after Bong\\n\\n\\n\\n 7\\n We note that this ineffective assistance of counsel claim is intertwined with,\\nand will ultimately hinge on the merits of, Bong’s Brady/Giglio claim regarding the\\nalleged videotapes of his stop and arrest.\\n 30\\n\\fallegedly discovered the existence of the video recordings. And, notably, the\\n\\ngovernment agreed at oral argument that the district court erred in summarily\\n\\ndismissing the claim as untimely. Consequently, we reverse the district court’s\\n\\ndismissal of Bong’s Brady/Giglio claim and remand the claim to the district court for\\n\\nfurther consideration.8\\n\\n IV\\n\\n With respect to Bong’s claims regarding his ACCA sentence, we REVERSE\\n\\nthe district court’s denial of § 2255 relief and REMAND with directions to the\\n\\ndistrict court to determine whether Bong’s ACCA sentence can be supported by his\\n\\nnon-robbery-related convictions. With respect to Bong’s ineffective assistance of\\n\\ncounsel claim, we AFFIRM in part, REVERSE in part, and REMAND to the district\\n\\ncourt for further proceedings consistent with this opinion. With respect to Bong’s\\n\\nBrady/Giglio claim, we REVERSE and REMAND for further proceedings consistent\\n\\nwith this opinion. Bong’s motion for expedited relief in DENIED as moot.\\n\\n\\n\\n\\n 8\\n According to the government, it has evidence, in particular affidavits from\\nCity employees, directly refuting Bong’s allegations regarding the purported\\nvideotapes. But the government conceded that this evidence is not in the record on\\nappeal and thus the proper course is for the district court to consider all of the\\nevidence in the first instance.\\n 31\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":390,"cells":{"id":{"kind":"number","value":4585459,"string":"4,585,459"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Bobby G. PULLEN, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Pullen"},"decision_date":{"kind":"string","value":"2019-01-29"},"docket_number":{"kind":"string","value":"17-3194"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"McHugh, Moritz, Eid\", \"parties\": \"\", \"opinions\": [{\"author\": \"McHUGH\", \"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS January 29, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n UNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n No. 17-3194\\n v.\\n\\n BOBBY G. PULLEN,\\n\\n Defendant - Appellant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Kansas\\n (D.C. Nos. 5:16-CV-04067-JAR and 5:98-CR-40080-JAR-1)\\n _________________________________\\n\\nDaniel T. Hansmeier, Appellate Chief, Kansas Federal Public Defender (Melody\\nBrannon, Federal Public Defender, and Kirk Redmond, First Assistant Federal Public\\nDefender), Kansas City, Kansas, for Defendant - Appellant.\\n\\nJared S. Maag, Assistant United States Attorney (Thomas E. Beall, former United States\\nAttorney; Stephen R. McAllister, United States Attorney; and James A. Brown, Assistant\\nUnited States Attorney, with him on the briefs), Topeka, Kansas, for Plaintiff - Appellee.\\n _________________________________\\n\\nBefore McHUGH, MORITZ, and EID, Circuit Judges.\\n _________________________________\\n\\nMcHUGH, Circuit Judge.\\n _________________________________\\n\\n\\n The district court sentenced Bobby G. Pullen as a career offender pursuant to\\n\\nUnited States Sentencing Guidelines Manual (“USSG”) § 4B1.1 at a time when the\\n\\fSentencing Guidelines were mandatory. In 2015, the Supreme Court decided Johnson v.\\n\\nUnited States, 135 S. Ct. 2551 (2015), holding the residual clause of 18 U.S.C.\\n\\n§ 924(e)(2)(B)(ii) is unconstitutionally vague. As the residual clause of § 924(e)(2)(B)(ii)\\n\\nis identical in wording to the residual clause of USSG § 4B1.2 (a definitional provision\\n\\nfor USSG § 4B1.1), Mr. Pullen, relying on Johnson, moved for authorization to file a\\n\\nsecond or successive 28 U.S.C. § 2255 motion. This court determined Mr. Pullen made a\\n\\nprima facie showing that Johnson created a retroactive, new rule of constitutional law\\n\\napplicable to the mandatory Guidelines. The district court, however, concluded Johnson\\n\\ndid not actually create a new rule applicable to the mandatory Guidelines and dismissed\\n\\nMr. Pullen’s § 2255 motion pursuant to 28 U.S.C. § 2255(h)(2), a provision governing\\n\\nauthorization to file a second or successive § 2255 motion. The district court did,\\n\\nhowever, grant Mr. Pullen a certificate of appealability (“COA”).\\n\\n On appeal, Mr. Pullen argues the district court procedurally erred when it relied on\\n\\n§ 2255(h)(2) as the basis for dismissing his § 2255 motion and substantively erred when\\n\\nit determined Johnson did not create a new rule applicable to the mandatory Guidelines.\\n\\nAs to Mr. Pullen’s procedural challenge, our recent decision in United States v. Murphy,\\n\\n887 F.3d 1064 (10th Cir.), cert. denied, 2018 WL 3462559 (Oct. 29, 2018), forecloses his\\n\\nargument. With respect to Mr. Pullen’s substantive challenge, the Supreme Court has\\n\\nnever recognized a void for vagueness challenge to the Guidelines and so Johnson neither\\n\\ncreates a new rule applicable to the Guidelines nor dictates that any provision of the\\n\\n\\n\\n\\n 2\\n\\fGuidelines is subject to a void for vagueness challenge. Accordingly, we affirm the\\n\\ndistrict court’s judgment.\\n\\n I. BACKGROUND\\n\\n In 1999, a jury convicted Mr. Pullen of one count of possession with intent to\\n\\ndistribute 100 kilograms or more of marihuana, or aiding and abetting the same, in\\n\\nviolation of 21 U.S.C. § 841(a)(1), (b)(1)(B), 18 U.S.C. § 2. At sentencing, the district\\n\\ncourt established a total offense level of thirty-four and a criminal history category of VI.\\n\\nThe offense level and criminal history category resulted from application of the career\\n\\noffender provision of USSG § 4B1.1 (1998). Application of the career offender provision\\n\\nrested in part on a prior Missouri conviction for escape. Under the offense level and\\n\\ncriminal history category compelled by the career offender provision, the presentence\\n\\ninvestigation report set Mr. Pullen’s Guidelines range at 262 to 327 months’\\n\\nimprisonment. The district court sentenced Mr. Pullen to 262 months’ imprisonment.\\n\\nAbsent designation as a career offender, Mr. Pullen’s Guidelines range would have been\\n\\n92 to 115 months’ imprisonment.\\n\\n In 2006, Mr. Pullen filed his first motion under 28 U.S.C. § 2255, which the\\n\\ndistrict court dismissed as untimely. United States v. Pullen, No. 98–40080–JAR,\\n\\n2006 WL 1133232, at *1 (D. Kan. Apr. 21, 2006). In 2015, the Supreme Court\\n\\ndecided Johnson, relying on the void for vagueness doctrine to invalidate the residual\\n\\nclause of 18 U.S.C. § 924(e)(2)(B)(ii). See 135 S. Ct. at 2563. This residual clause is\\n\\npart of the Armed Career Criminal Act (“ACCA”), which enhances the statutory\\n\\nmandatory minimum for certain defendants who have three or more previous\\n\\n 3\\n\\fconvictions “for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1).\\n\\nSection 924(e)(2)(B)(ii) defines “violent felony” to include an offense that “is\\n\\nburglary, arson, or extortion, involves use of explosives, or otherwise involves\\n\\nconduct that presents a serious potential risk of physical injury to another.”\\n\\n(emphasis added). The clause emphasized above is the residual clause invalidated in\\n\\nJohnson. Importantly, the residual clause of § 924(e)(2)(B)(ii) is identical to the\\n\\nresidual clause in USSG § 4B1.2, which defined “crime of violence” for purposes of\\n\\nthe career offender guideline as an offense that “is burglary of a dwelling, arson, or\\n\\nextortion, involves use of explosives, or otherwise involves conduct that presents a\\n\\nserious potential risk of physical injury to another.” USSG 4B1.2(a)(2) (emphasis\\n\\nadded).\\n\\n Within one year of the decision in Johnson, Mr. Pullen, relying on 28 U.S.C.\\n\\n§ 2255(h)(2) and arguing Johnson created a new rule of constitutional law applicable\\n\\nto the mandatory Guidelines, filed a motion in this court for authorization to file a\\n\\nsecond or successive § 2255 motion. We granted the motion for authorization and\\n\\nMr. Pullen filed his § 2255 motion in district court. The Government filed a response\\n\\nin which it conceded Mr. Pullen’s Missouri escape conviction qualified as a “crime\\n\\nof violence” only under the residual clause of USSG § 4B1.2(a)(2) but argued, in\\n\\npart, that (1) Johnson did not create a new rule applicable to the mandatory\\n\\nGuidelines; (2) a rule allowing void for vagueness challenges to the Guidelines\\n\\nwould be a new rule that the Supreme Court had not yet recognized; and (3) Mr.\\n\\nPullen’s motion was, therefore, untimely for purposes of 28 U.S.C. § 2255(f).\\n\\n 4\\n\\f The district court focused its analysis on § 2255(h)(2)’s requirement that Mr.\\n\\nPullen’s motion be based on “a new rule of constitutional law, made retroactive to cases\\n\\non collateral review by the Supreme Court.” See ROA at 184 (quoting § 2255(h)(2)). The\\n\\ndistrict court concluded Mr. Pullen’s motion was untimely and did not satisfy\\n\\n§ 2255(h)(2) because relief was premised on the void for vagueness doctrine applying to\\n\\nthe Guidelines but neither Johnson nor any other Supreme Court case has recognized a\\n\\nvoid for vagueness challenge to the Guidelines. Thus, the district court, relying on\\n\\n§ 2255(h)(2), dismissed Mr. Pullen’s motion.\\n\\n The district court, however, granted Mr. Pullen a COA. In pertinent part, the COA\\n\\nreads: “Here, the Court concludes that reasonable jurists could debate whether the Court\\n\\nwas correct in its ruling. The Court thus grants a COA on the issue of whether Mr.\\n\\nPullen’s motion falls within the scope of 28 U.S.C. § 2255(h)(2).” ROA at 187. In his\\n\\nopening brief, Mr. Pullen focuses on the § 2255(h)(2) nature of the dismissal, arguing this\\n\\nprovision is directed at the circuit court’s authority to grant a prisoner authorization to file\\n\\na second or successive § 2255 motion and, once a circuit court grants authorization, the\\n\\ndistrict court may not dismiss the motion pursuant to § 2255(h)(2).1 In its response brief,\\n\\nthe Government argues a grant of authorization by a circuit court only preliminarily\\n\\ncertifies that the movant satisfied the preconditions for a second or successive § 2255\\n\\n\\n\\n 1\\n Mr. Pullen moved for leave to file a pro se opening brief. Because Mr. Pullen\\nis represented by counsel, we deny his motion. See United States v. McDermott, 64\\nF.3d 1448, 1450 n.1 (10th Cir. 1995) (declining to consider issues raised in pro se\\nbrief based on “policy of addressing on direct appeal only those issues raised by\\ncounsel”).\\n 5\\n\\fmotion and that the district court has a secondary gatekeeping role to assure the motion\\n\\ndoes, in fact, satisfy § 2255(h)(2). The Government further argues the district court\\n\\ncorrectly concluded Johnson did not create a retroactive, new rule applicable to the\\n\\nmandatory Guidelines.\\n\\n After briefing concluded, several key developments occurred in the law\\n\\nsurrounding Johnson. First, the Supreme Court issued its decision in Sessions v. Dimaya,\\n\\nholding application of Johnson resulted in the conclusion that 18 U.S.C. § 16(b)—which\\n\\nis similarly, but not identically, worded to the residual clause of § 924(e)(2)(B)(ii)—was\\n\\nunconstitutionally vague. 138 S. Ct. 1204 (2018). Second, the Supreme Court denied\\n\\ncertiorari petitions in several cases where circuit courts rejected § 2255 Johnson-based\\n\\nchallenges to the residual clause in USSG § 4B1.2. See, e.g., Raybon v. United States,\\n\\n138 S. Ct. 2661 (2018); Lester v. United States, 138 S. Ct. 2030 (2018). Third, several\\n\\nother circuit courts addressed whether Johnson created a retroactive, new rule applicable\\n\\nto the residual clause of USSG § 4B1.2. See United States v. Blackstone, 903 F.3d 1020,\\n\\n1025–28 (9th Cir. 2018) (holding Supreme Court has yet to announce rule that mandatory\\n\\nGuidelines are susceptible to void for vagueness challenge); Russo v. United States, 902\\n\\nF.3d 880, 882–84 (8th Cir. 2018) (denying § 2255 relief and holding prisoner was not\\n\\nasserting a right based on Johnson because reasonable minds could debate whether\\n\\nJohnson announced a new rule of constitutional law applicable to the mandatory\\n\\nGuidelines); United States v. Green, 898 F.3d 315, 319–23 (3d Cir. 2018) (holding\\n\\n§ 2255 motion untimely because Beckles v. United States, 137 S. Ct. 886 (2017), favors\\n\\nconclusion Johnson did not create new rule applicable to mandatory Guidelines and that\\n\\n 6\\n\\fissue remains open); Cross v. United States, 892 F.3d 288, 299–306 (7th Cir. 2018)\\n\\n(holding Johnson created new rule applicable to all vague, mandatory residual clauses\\n\\nthat enhance punishment such that § 2255 relief from sentence imposed under mandatory\\n\\nGuidelines scheme was proper).\\n\\n In the midst of these developments, we ordered the parties to submit\\n\\nsimultaneous supplemental briefs. In his supplemental brief, Mr. Pullen argues\\n\\nDimaya teaches us that Johnson created a new rule that applies beyond 18 U.S.C.\\n\\n§ 924(e)(2)(B)(ii).2 And Mr. Pullen articulates the new rule from Johnson as a\\n\\n due process right not to have a statutory penalty range fixed by a\\n provision that defines a prior conviction as one involving “conduct that\\n presents a serious potential risk of physical injury to another,” and that\\n uses an ordinary-case categorical approach to measure whether the\\n conviction is sufficiently risky to count under the provision.\\n\\nPullen Supp. Br. at 5–6 (not identifying source of quotation). The Government argues\\n\\nneither Dimaya nor Johnson addressed the constitutionality of a Guidelines provision\\n\\nor whether the void for vagueness doctrine applies to the Guidelines. Rather, the\\n\\nGovernment argues, Beckles provides the best guidance on whether Johnson created\\n\\na new rule relative to the mandatory Guidelines. The majority opinion in Beckles\\n\\nrejected a Johnson-based challenge to the advisory Guidelines and Justice\\n\\nSotomayor, in a concurrence, indicated that Johnson’s applicability to the mandatory\\n\\nGuidelines “remains an open question.” Gov. Supp. Br. at 5. The Government\\n\\n\\n 2\\n Out of concern that his counsel might not have filed a supplemental brief,\\nMr. Pullen moved to file a pro se supplemental brief. As Mr. Pullen is represented by\\ncounsel and his counsel did file a supplemental brief, we deny Mr. Pullen’s motion.\\nSee McDermott, 64 F.3d at 1150 n.1.\\n 7\\n\\ftheorizes that if the question remains open, Johnson does not create a new rule\\n\\napplicable to the mandatory Guidelines because, if a question is “expressly left open,\\n\\nthen the right, by definition, has not been recognized.” Id. at 5–6 (quoting United\\n\\nStates v. Brown, 868 F.3d 297, 299 n.1 (4th Cir. 2017), cert. denied, 139 S. Ct. 14\\n\\n(2018)).\\n\\n Finally, subsequent to oral argument, the Supreme Court, over a two justice\\n\\ndissent, denied certiorari petitions in a second set of cases where circuit courts denied\\n\\n§ 2255 motions raising Johnson-based challenges to the residual clause of USSG\\n\\n§ 4B1.2, as applied when the Guidelines were mandatory. Brown v. United States,\\n\\n139 S. Ct. 14 (2018); see Gipson v. United States, 2018 WL 1993703 (Oct. 15, 2018);\\n\\nLewis v. United States, 2018 WL 3094227 (Oct. 15, 2018); Greer v. United States,\\n\\n2018 WL 2087987 (Oct. 15, 2018); Wilson v. United States, 2018 WL 2064772 (Oct.\\n\\n15, 2018); Molette v. United States, 2018 WL 1640168 (Oct. 15, 2018); Homrich v.\\n\\nUnited States, 2018 WL 2364812 (Oct. 15, 2018); Chubb v. United States, 2018 WL\\n\\n3024068 (Oct. 15, 2018); Smith v. United States, 2018 WL 3024136 (Oct. 15, 2018);\\n\\nBuckner v. United States, 2018 WL 3024166 (Oct. 15, 2018);3 see also Robinson v.\\n\\nUnited States, 2019 WL 113550 (Jan. 7, 2019); Garrett v. United States, 2018 WL\\n\\n\\n 3\\n Footnote 1 of the dissent from the denial of certiorari in Brown v. United\\nStates indicates that the dissent also applies to the other nine orders denying\\ncertiorari that issued on October 15, 2018. 139 S. Ct. 14, 14 n.1 (2018) (Sotomayor,\\nJ., dissenting from denial of certiorari). Where Justice Ginsburg joined the dissent in\\nBrown in full and without reservation, we interpret footnote 1 as indicating that\\nJustice Ginsburg dissented from the other nine denials of certiorari issued on October\\n15, 2018, even though the orders in those denials do not specifically identify Justice\\nGinsburg as dissenting.\\n 8\\n\\f3660076 (Dec. 3, 2018); Bowens v. United States, 2018 WL 5113456 (Nov. 19,\\n\\n2018); Callins v. United States, 2018 WL 4932460 (Nov. 13, 2018).\\n\\n II. STANDARD OF REVIEW\\n\\n “Where, as here, the district court does not hold an evidentiary hearing, but\\n\\nrather denies the motion as a matter of law . . . our review is strictly de novo.” United\\n\\nStates v. Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015) (quotation marks omitted).\\n\\nFurther, “[w]e are not bound by the district court’s reasoning and may affirm on any\\n\\nground adequately supported by the record.” United States v. Greer, 881 F.3d 1241,\\n\\n1244 (10th Cir. 2018), (internal quotation marks omitted) cert. denied 2018 WL\\n\\n2087987; see Grossman v. Bruce, 447 F.3d 801, 805 n.2 (10th Cir. 2006) (“[W]e are\\n\\nfree to affirm [the denial of 28 U.S.C. § 2241 relief] on any ground for which there is\\n\\na sufficient record to permit conclusions of law.”).\\n\\n III. DISCUSSION\\n\\n A. Threshold Requirement for Second or Successive § 2255 Motion\\n\\n Although prisoners who have not filed a prior § 2255 motion may file such a\\n\\nmotion directly in the district court, a prisoner who filed a prior § 2255 motion must\\n\\nobtain authorization from a circuit court judge prior to filing the motion in district\\n\\ncourt. See 28 U.S.C. § 2244(a); see also id. § 2244(b)(3)(A) (“Before a second or\\n\\nsuccessive application permitted by this section is filed in the district court, the\\n\\napplicant shall move in the appropriate court of appeals for an order authorizing the\\n\\ndistrict court to consider the application.”). Section 2255(h) of Title 28 sets out the\\n\\nrequirements for authorization and states, in pertinent part:\\n\\n 9\\n\\f A second or successive motion must be certified as provided in section\\n 2244 by a panel of the appropriate court of appeals to contain—\\n ...\\n (2) a new rule of constitutional law, made retroactive to cases on\\n collateral review by the Supreme Court, that was previously\\n unavailable.\\n\\nTo obtain authorization to file a second or successive § 2255 motion, a movant\\n\\nrelying on a new rule of constitutional law must make a prima facie showing to the\\n\\ncircuit court that he satisfies the § 2255(h)(2) requirements. 28 U.S.C.\\n\\n§ 2244(b)(3)(C).\\n\\n B. Secondary Requirement for Second or Successive § 2255 Motion\\n\\n Having concluded that Mr. Pullen made a prima facie showing to the circuit court\\n\\nthat he satisfies the § 2255(h)(2) requirements, we next consider whether the district\\n\\ncourt possessed the authority to deny Mr. Pullen relief and dismiss his § 2255 motion\\n\\npursuant to § 2255(h)(2) after the circuit court certified his prima facie compliance.\\n\\nOur recent decision in Murphy controls our analysis.\\n\\n As discussed, “[u]nder § 2255(h)(2), a second or successive [§ 2255] motion\\n\\nmust be certified—as provided in 28 U.S.C. § 2244—by a court of appeals to contain\\n\\na previously unavailable new rule of constitutional law that the Supreme Court has\\n\\nmade retroactively applicable to cases on collateral review.” Murphy, 887 F.3d at\\n\\n1067. In turn, § 2244(b)(3) instructs that “to receive certification, a motion need only\\n\\nmake a prima facie showing that it satisfies § 2255’s criteria.” Id. (emphasis added).\\n\\nBecause § 2244(b)(3) requires only a prima facie showing for certification by the\\n\\ncourt of appeals, certification amounts to only a “preliminary” determination that the\\n\\n\\n 10\\n\\fsecond or successive § 2255 motion contains a claim based on a new rule of\\n\\nconstitutional law made retroactive on collateral review by the Supreme Court. Id.\\n\\nThe “preliminary” nature of this determination means the movant must pass through\\n\\na second procedural gate once in district court: “[P]ursuant to § 2244(b)(4), once the\\n\\ncourt of appeals grants authorization, the district court must determine whether the\\n\\npetition does, in fact, satisfy the requirements for filing a second or successive\\n\\nmotion before the merits of the motion can be considered.” Id. (internal quotation\\n\\nmarks omitted). In summation, the two procedural gates a prisoner must pass through\\n\\nbefore obtaining review of the merits of a second or successive § 2255 motion are:\\n\\n (1) a prima facie showing to the court of appeals that the motion\\n satisfies the requirements of § 2255(h), defined as “a sufficient\\n showing of possible merit to warrant a fuller exploration by the\\n district court” and\\n (2) a determination by the district court that the petition does, in fact,\\n satisfy those requirements.\\n\\nId. at 1068 (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997)).\\n\\n In accord with this two-gate approach, the district court was required to\\n\\nanalyze whether Mr. Pullen’s § 2255 motion actually relied on “a new rule of\\n\\nconstitutional law, made retroactive to cases on collateral review by the Supreme\\n\\nCourt” as required by § 2255(h)(2) and § 2244(b)(4). Concluding that Mr. Pullen’s\\n\\n§ 2255 motion did not actually rely on a new rule of constitutional law applicable to\\n\\nthe mandatory Guidelines, the district court relied on § 2255(h)(2) to dismiss the\\n\\nmotion.\\n\\n\\n\\n\\n 11\\n\\f With these requirements in mind, we discuss the history of the Sentencing\\n\\nGuidelines and of Johnson and its progeny before turning to the issue of whether the\\n\\ndistrict court correctly determined that Mr. Pullen cannot actually satisfy the\\n\\nrequirements of § 2255(h)(2). See 28 U.S.C. § 2244(b)(4). That is, whether his\\n\\nmotion relies on a new rule of constitutional law already decided and deemed\\n\\nretroactively applicable by the Supreme Court.\\n\\n C. Legal Background\\n\\n1. History of the Guidelines\\n\\n In 1984, Congress authorized the United States Sentencing Commission to\\n\\npromulgate the Sentencing Guidelines. Mistretta v. United States, 488 U.S. 361, 362\\n\\n(1989). Prior to the adoption of the Guidelines, the often expansive statutory\\n\\nminimum and maximum penalties for an offense served as the only constraint on a\\n\\nfederal judge’s discretion at sentencing. Id. at 364 (describing the pre-Guidelines\\n\\nsentencing scheme as one where “Congress delegated almost unfettered discretion to\\n\\nthe sentencing judge to determine what the sentence should be within the customarily\\n\\nwide range so selected”). One of the primary purposes behind the creation of the\\n\\nGuidelines was to “promote uniformity and proportionality in sentencing” across the\\n\\ncountry. United States v. Jackson, 921 F.2d 985, 988 (10th Cir. Dec. 17, 1990) (en\\n\\nbanc). And in passing the Sentencing Reform Act of 1984, Congress intentionally\\n\\n“settl[ed] on a mandatory-guideline system,” rather than an advisory system.\\n\\nMistretta, 488 U.S. at 367.\\n\\n\\n\\n 12\\n\\f Codifying the generally mandatory nature of the Guidelines, Congress enacted\\n\\n18 U.S.C. § 3553(b)(1), which states, in pertinent part:\\n\\n Except as provided in paragraph (2), the court shall impose a sentence\\n of the kind, and within the range, [produced by the Guidelines] unless\\n the court finds that there exists an aggravating or mitigating\\n circumstance of a kind, or to a degree, not adequately taken into\\n consideration by the Sentencing Commission in formulating the\\n guidelines that should result in a sentence different from that described.\\n In determining whether a circumstance was adequately taken into\\n consideration, the court shall consider only the sentencing guidelines,\\n policy statements, and official commentary of the Sentencing\\n Commission.\\n\\n(emphasis added). In 2005, the Supreme Court struck down the above-quoted\\n\\nstatutory provision, concluding the Sixth Amendment precluded a sentencing judge\\n\\nfrom finding facts that effectively increased a defendant’s punishment where those\\n\\nfacts had not been found by a jury or admitted by the defendant as part of a guilty\\n\\nplea. United States v. Booker, 543 U.S. 220, 244 (2005).4 In reaching this conclusion,\\n\\nthe Court held the Guidelines acted like a statute because a sentencing judge’s ability\\n\\nto depart from the Guidelines range was so strictly limited that the Guidelines range\\n\\ndrove a defendant’s sentence in the vast majority of cases. Id. at 234. To solve the\\n\\nconstitutional problem with a mandatory-Guidelines scheme, the Supreme Court\\n\\nsevered the portion of the Sentencing Reform Act of 1984 that made the Guidelines\\n\\n\\n\\n\\n 4\\n Despite Booker’s statement about judicial factfinding at sentencing violating\\nthe Sixth Amendment, an exception to this general prohibition exists where the\\ndistrict court makes factual findings regarding a defendant’s prior criminal history.\\nSee Apprendi v. New Jersey, 530 U.S. 466, 496 (2000).\\n 13\\n\\fmandatory, transforming the Guidelines into their present-day, advisory form. Id. at\\n\\n265; see also id. at 245–60.\\n\\n2. Johnson and its Progeny\\n\\n In 2015, the Supreme Court addressed the constitutionality of 18 U.S.C.\\n\\n§ 924(e)(2)(B). Section 924(e)(2)(B) defined “violent felony” as\\n\\n any crime punishable by imprisonment for a term exceeding one year\\n . . . that—\\n (i) has as an element the use, attempted use, or threatened use of\\n physical force against the person of another; or\\n (ii) is burglary, arson, or extortion, involves use of explosives, or\\n otherwise involves conduct that presents a serious potential\\n risk of physical injury to another\\n\\n(emphasis added). In Johnson, the Court concluded the emphasized language, known\\n\\nas the residual clause, was void for vagueness because “the indeterminacy of the\\n\\nwide-ranging inquiry required by the residual clause both denies fair notice to\\n\\ndefendants and invites arbitrary enforcement by judges.” 135 S. Ct. at 2557; see id. at\\n\\n2556 (identifying “fail[ure] to give ordinary people fair notice of the conduct it\\n\\npunishes” and being “so standardless that it invites arbitrary enforcement” as two\\n\\nbases for finding statute unconstitutionally vague). Johnson, however, limited its\\n\\nholding to the residual clause of § 924(e)(2)(B)(ii). See id. at 2563 (“Today’s\\n\\ndecision does not call into question application of the [ACCA] to the four enumerated\\n\\noffenses, or the remainder of the [ACCA’s] definition of a violent felony.”); see also\\n\\nGreer, 881 F.3d at 1248 (“[T]he only right recognized by the Supreme Court in\\n\\nJohnson was a defendant’s right not to have his sentence increased under the residual\\n\\nclause of the ACCA.”).\\n\\n 14\\n\\f In the aftermath of Johnson, courts were flooded with challenges, both on\\n\\ndirect appeal and under § 2255, to convictions or sentences supported by\\n\\n§ 924(e)(2)(B)(ii) or other provisions resembling § 924(e)(2)(B)(ii). A trio of\\n\\nSupreme Court cases shape the state of the law post-Johnson. First, in Welch v.\\n\\nUnited States, the Court held Johnson announced a new rule of constitutional law\\n\\nthat applied retroactively to cases on collateral review. 136 S. Ct. 1257, 1264–65\\n\\n(2016). Although Welch never explicitly states the rule from Johnson, the majority\\n\\nopinion suggests the rule was limited to the ACCA. See id. at 1265 (“By striking\\n\\ndown the residual clause as void for vagueness, Johnson changed the substantive\\n\\nreach of the Armed Career Criminal Act, altering the range of conduct or the class of\\n\\npersons that the [Act] punishes . . . . The residual clause is invalid under Johnson, so\\n\\nit can no longer mandate or authorize any sentence. Johnson establishes . . . that even\\n\\nthe use of impeccable factfinding procedures could not legitimate a sentence based\\n\\non that clause.” (internal quotation marks omitted)). But see id. at 1272 (Thomas, J.,\\n\\ndissenting) (“Johnson’s new constitutional rule is that a law is unconstitutionally\\n\\nvague if it ‘requires a court to picture the kind of conduct that the crime involves in\\n\\n“the ordinary case,” and to judge whether that abstraction presents a serious potential\\n\\nrisk,’ of some result.” (quoting Johnson, 135 S. Ct. at 2557)).\\n\\n Second, in Beckles, the Court addressed whether the residual clause of USSG\\n\\n§ 4B1.2 of the advisory Guidelines was susceptible to a void for vagueness challenge\\n\\n\\n\\n\\n 15\\n\\fsimilar to the challenge that prevailed in Johnson.5 See 137 S. Ct. at 890. Because the\\n\\nresidual clause of USSG § 4B1.2(a)(2) was identical to the language held void for\\n\\nvagueness in Johnson, several circuit courts, including this court, concluded the rule\\n\\nfrom Johnson necessitated the invalidation of the residual clause in § 4B1.2(a)(2)\\n\\nwithin the context of the advisory Guidelines. See United States v. Pawlak, 822 F.3d\\n\\n902 (6th Cir. 2016); United States v. Hurlburt, 835 F.3d 715 (7th Cir. 2016) (en\\n\\nbanc); United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015). But see United States\\n\\nv. Matchett, 802 F.3d 1185 (11th Cir. 2015) (rejecting void for vagueness challenge\\n\\nto advisory Guidelines).\\n\\n In Beckles, the Supreme Court rejected the position that the advisory\\n\\nGuidelines were susceptible to the rule from Johnson or a void for vagueness\\n\\n\\n\\n 5\\n Recall that USSG § 4B1.2 defined “crime of violence” as:\\n\\n [A]ny offense under federal or state law, punishable by imprisonment\\n for a term exceeding one year, that—\\n (1) has as an element the use, attempted use, or threatened use of\\n physical force against the person of another, or\\n (2) is burglary of a dwelling, arson, or extortion, involves use of\\n explosives, or otherwise involves conduct that presents a\\n serious potential risk of physical injury to another.\\n\\nUSSG § 4B1.2(a) (1998–2015) (emphasis added). The emphasized language is the\\nresidual clause that was at issue in Beckles v. United States, 137 S. Ct. 886 (2017),\\nand is at issue in this case. In 2016, the Sentencing Commission passed an\\namendment to the Guidelines adding several enumerated offenses to subsection (2)\\nand removing the residual clause of the subsection. USSG Supp. to App. C., Amend\\n798 at 131 (Nov. 1, 2016) (“Amendment 798”). Amendment 798, however, has no\\nbearing on Mr. Pullen’s case as the Amendment does not apply retroactively. See\\nUSSG § 1B1.10(d) (listing amendments that apply retroactively).\\n\\n 16\\n\\fchallenge. 137 S. Ct. at 894–95. In so holding, the Court observed it had “invalidated\\n\\ntwo kinds of criminal laws as ‘void for vagueness’: laws that define criminal offenses\\n\\nand laws that fix the permissible sentences for criminal offenses.” Id. at 892 (first and\\n\\nthird emphases added). The Beckles Court further observed that “‘statutes fixing\\n\\nsentences’ must specify the range of available sentences with ‘sufficient clarity,’” id.\\n\\n(emphasis added) (first quoting Johnson, 135 S. Ct. at 2557, then quoting United\\n\\nStates v. Batchelder, 442 U.S. 114, 123 (1979)), and that “[b]y specifying ‘the range\\n\\nof penalties that prosecutors and judges may seek and impose,’ Congress ha[s]\\n\\n‘fulfilled its duty’” to craft a law that comports with due process, id. at 893 (quoting\\n\\nBatchelder, 442 U.S. at 126). The Court then distinguished the advisory Guidelines,\\n\\nwhich “do not fix the permissible range of sentences,” from the “statute” at issue in\\n\\nJohnson, which did “fix[] permissible sentences.” Id. at 892. From this, the Court\\n\\nconcluded “[t]he advisory Guidelines . . . do not implicate the twin concerns\\n\\nunderlying [the] vagueness doctrine—providing notice and preventing arbitrary\\n\\nenforcement.” Id. at 894. As to the first of these concerns, “[a]ll of the notice\\n\\nrequired is provided by the applicable statutory range, which establishes the\\n\\npermissible bounds of the court’s sentencing discretion.” Id. Along those lines, the\\n\\nCourt stated, “[t]he Guidelines . . . do not regulate the public by prohibiting any\\n\\nconduct or by ‘establishing minimum and maximum penalties for any crime.’” Id. at\\n\\n895 (quoting Mistretta, 488 U.S. at 396).\\n\\n The majority opinion in Beckles, however, indicated that the second concern of\\n\\nthe void for vagueness doctrine—preventing arbitrary enforcement—was ameliorated\\n\\n 17\\n\\fby the advisory nature of the Guidelines post-Booker and the sentencing judge’s\\n\\ndiscretion to impose a sentence anywhere within the statutory range. Id. The\\n\\ndistinction between the discretion afforded sentencing judges under the advisory\\n\\nGuidelines, compared to the mandatory Guidelines, caught the attention of Justice\\n\\nSotomayor, whose concurrence stated:\\n\\n The Court’s adherence to the formalistic distinction between mandatory\\n and advisory rules at least leaves open the question whether defendants\\n sentenced to terms of imprisonment before our decision in United States\\n v. Booker, 543 U.S. 220 (2005)—that is, during the period in which the\\n Guidelines did “fix the permissible range of sentences”—may mount\\n vagueness attacks on their sentences. That question is not presented by\\n this case and I, like the majority, take no position on its appropriate\\n resolution.\\n\\nId. at 903 n.4 (Sotomayor, J. concurring in the judgment) (citations omitted).\\n\\n Third, in Dimaya, the Supreme Court relied on the void for vagueness doctrine\\n\\nto strike down 18 U.S.C. § 16(b)’s definition of crime of violence, a provision the\\n\\nCourt described as “similarly worded” to the residual clause struck down in Johnson.\\n\\nDimaya, 138 S. Ct. at 1210. In so holding, the opinion of the Court made three\\n\\nstatements potentially important to determining the scope of the new rule from\\n\\nJohnson. First, Dimaya indicated its ruling was a product of “adhering” to the\\n\\nanalysis set forth in Johnson. Id. Second, Dimaya called Johnson “a straightforward\\n\\ndecision, with equally straightforward application here” such that the “reasoning” of\\n\\nJohnson “effectively resolved the [issue] before” the Court in Dimaya.6 Id. at 1213.\\n\\n\\n 6\\n Notably, Dimaya could have, but did not, state that any “rule” from Johnson\\n“dictated” a result in Dimaya. Cf. Russo v. United States, 902 F.3d 880, 883 (8th Cir.\\n\\n 18\\n\\fFinally, Dimaya compared § 16(b) and § 924(e)(2)(B)(ii), stating that both statutes\\n\\n“‘require[] a court to picture the kind of conduct that the crime involves in “the\\n\\nordinary case” and to judge whether that abstraction presents’ some not-well-\\n\\nspecified-yet-sufficiently-large degree of risk.” Id. at 1216 (quoting Johnson, 135 S.\\n\\nCt. at 2556–57). Under this analytical framework, Dimaya concluded “§ 16(b)\\n\\nproduces, just as the ACCA’s residual clause did, ‘more unpredictability and\\n\\narbitrariness than the Due Process Clause tolerates.’” Id. at 1216 (quoting Johnson,\\n\\n135 S. Ct. at 2558).\\n\\n D. Analysis\\n\\n Based on Johnson and its progeny, Mr. Pullen describes the new and\\n\\nretroactive rule from Johnson as a right not to be sentenced under an ordinary-case\\n\\ncategorical approach requiring a judge to picture conduct of the crime and predict\\n\\nwhether that conduct presents a sufficiently large degree of risk. Before considering\\n\\nthe rule Mr. Pullen advances, we pause to address the iterations of the rule by this\\n\\ncourt and others. We then turn to the formulation of the rule endorsed by Mr. Pullen,\\n\\nultimately deciding it does not permit relief on a second or successive § 2255 claim\\n\\nchallenging the mandatory Guidelines because the Supreme Court has not yet\\n\\n\\n\\n\\n2018) (quoting Teague v. Lane, 489 U.S. 288, 301 (1989), for proposition that “[a]\\ncase announces a new rule if the result was not dictated by precedent existing at the\\ntime the defendant’s conviction became final” and concluding that any rule relative\\nto the mandatory Guidelines would be a new rule because the rule “is not dictated by\\nJohnson”).\\n 19\\n\\fannounced a rule with respect to the mandatory Guidelines. Thus, we agree with the\\n\\ndistrict court that Mr. Pullen’s motion does not actually satisfy § 2255(h)(2).\\n\\n1. Decisions Defining the Rule Announced in Johnson\\n\\n Several circuit court decisions, including our own decision in Greer, have\\n\\nstated the new rule created by Johnson as “a defendant’s right not to have his\\n\\nsentence increased under the residual clause of the ACCA.”7 Greer, 881 F.3d at\\n\\n1248; see also Green, 898 F.3d at 321 (“[I]n light of Beckles, Johnson’s holding as to\\n\\nthe residual clause in the ACCA created a right only as to the ACCA, and not a\\n\\nbroader right that applied to all similarly worded residual clauses, such as that found\\n\\nin the advisory Sentencing Guidelines.”); Brown, 868 F.3d at 303 (“Johnson only\\n\\nrecognized that ACCA’s residual clause was unconstitutionally vague.”). If this\\n\\nphrasing of the new rule from Johnson is correct, Mr. Pullen is not entitled to\\n\\nproceed on his § 2255 motion because his Guidelines range was increased as a result\\n\\nof application of USSG § 4B1.1 and the residual clause of USSG § 4B1.2(a)(2) of the\\n\\nmandatory Guidelines and not the residual clause of the ACCA.\\n\\n The Seventh Circuit, the only circuit to grant relief to a § 2255 movant relying\\n\\non Johnson to challenge USSG §§ 4B1.1, 1.2 of the mandatory Guidelines, has\\n\\nexpressed the new rule from Johnson as “a right not to have his sentence dictated by\\n\\n\\n\\n 7\\n The narrowness of that statement of the rule from Johnson has been called\\ninto question by Dimaya’s application of the rule to a statutory context outside of the\\nACCA—albeit on direct review. But we need not define the precise boundaries of the\\nrule today because Mr. Pullen’s attempt to apply Johnson to the mandatory\\nGuidelines fails even under his more expansive statement of that rule.\\n 20\\n\\fthe unconstitutionally vague language of the mandatory residual clause.” Cross, 892\\n\\nF.3d at 294; see Blackstone, 903 F.3d at 1027 (identifying quoted language from\\n\\nCross as Seventh Circuit’s statement of new right from Johnson). But the Ninth\\n\\nCircuit has concluded that the Seventh Circuit’s proposed rule is phrased at such a\\n\\nhigh level of generality that it runs afoul of Supreme Court teachings regarding the\\n\\nparameters for phrasing a new rule for purposes of a collateral proceeding. See\\n\\nBlackstone, 903 F.3d at 1026 (“The Supreme Court has repeatedly admonished our\\n\\ncourt not to advance on its own in determining what rights have been recognized by\\n\\nthe Supreme Court under AEDPA.”) (citations omitted). We need not consider\\n\\nwhether the Seventh Circuit’s articulation of the rule is so broad as to restate existing\\n\\nlaw, rather than announcing a new rule, because Mr. Pullen has espoused a more\\n\\nnarrow interpretation of the rule from Johnson. We consider Mr. Pullen’s phrasing of\\n\\nthe new rule now.\\n\\n2. Mr. Pullen’s Statement of the Rule\\n\\n Mr. Pullen argues the proper statement of the new rule from Johnson is the\\n\\nright not to be sentenced under an ordinary-case categorical approach that requires\\n\\nthe judge to imagine both the conduct necessary to commit the crime and the degree\\n\\nof risk posed by such conduct. Support for Mr. Pullen’s interpretation of Johnson can\\n\\nbe drawn from the dissent in Welch and from Dimaya. On the former, as pointed out\\n\\nabove, the dissent in Welch identified the new rule from Johnson in a manner similar\\n\\nto the rule stated by Mr. Pullen. See Welch, 136 S. Ct. at 1272 (Thomas, J.,\\n\\ndissenting) (“Johnson’s new constitutional rule is that a law is unconstitutionally\\n\\n 21\\n\\fvague if it ‘requires a court to picture the kind of conduct that the crime involves in\\n\\n“the ordinary case,” and to judge whether that abstraction presents a serious potential\\n\\nrisk,’ of some result.” (quoting Johnson, 135 S. Ct. at 2557)). With respect to the\\n\\nlatter, Dimaya read Johnson as concluding that a residual clause is unconstitutionally\\n\\nvague if it “‘requires a court to picture the kind of conduct that the crime involves in\\n\\n“the ordinary case,” and to judge whether that abstraction presents’ some not-well-\\n\\nspecified-yet-sufficiently-large degree of risk.” 138 S. Ct. at 1216 (quoting Johnson,\\n\\n135 S. Ct. at 2556–57). Assuming for the sake of argument that Mr. Pullen is correct\\n\\nregarding the proper phrasing of the new rule from Johnson, three considerations\\n\\ndefeat his ability to rely on the rule to proceed with a second or successive § 2255\\n\\nmotion challenging the mandatory Guidelines.\\n\\n First, central to whether Mr. Pullen can rely on any new rule from Johnson is\\n\\nwhether application of the rule to the mandatory Guidelines is “dictated by\\n\\nprecedent” and “apparent to all reasonable jurists” as opposed to “susceptible to\\n\\ndebate among reasonable minds.” Russo, 902 F.3d at 883 (quotation marks omitted).8\\n\\nNeither Johnson, Welch, nor Dimaya addressed a challenge to a provision of the\\n\\nGuidelines, mandatory or advisory. Instead, the only case to address a Johnson-based\\n\\nchallenge to the Guidelines is Beckles, which concluded the advisory Guidelines were\\n\\n\\n 8\\n The Eighth Circuit reached this conclusion based on a trio of Supreme Court\\ncases discussing principles governing new rules: Teague v. Lane, 489 U.S. 288, 301\\n(1989), Chaidez v. United States, 568 U.S. 342, 347 (2013), and Butler v. MecKellar,\\n494 U.S. 407, 415 (1990). See Russo v. United States, 902 F.3d 880, 883 (8th Cir.\\n2018).\\n\\n 22\\n\\fnot susceptible to a void for vagueness challenge. 137 S. Ct. at 897. And while the\\n\\nadvisory nature of the Guidelines at issue in Beckles was undoubtedly important to\\n\\nthe Court’s holding, the concurrence in Beckles indicated that Johnson’s applicability\\n\\nto the mandatory Guidelines remained an open question. See id. at 903 n.4\\n\\n(Sotomayor, J. concurring in the judgment) (“The Court’s adherence to the\\n\\nformalistic distinction between mandatory and advisory rules at least leaves open the\\n\\nquestion whether defendants sentenced to terms of imprisonment before our decision\\n\\nin United States v. Booker . . . may mount vagueness attacks on their sentences.”).9 If\\n\\na question remains “open,” it is not dictated by precedent. See Brown, 868 F.3d at\\n\\n301 (“[I]f the existence of a right remains an open question as a matter of Supreme\\n\\nCourt precedent, then the Supreme Court has not ‘recognized’ that right.”); Raybon,\\n\\n867 F.3d at 630 (“Because it is an open question, it is not a ‘right’ that ‘has been\\n\\nnewly recognized by the Supreme Court’ let alone one that was ‘made retroactively\\n\\napplicable to cases on collateral review.’” (quoting 28 U.S.C. § 2255(f)(3))); see also\\n\\nBlackstone, 903 F.3d at 1026–27 (relying on open nature of question when affirming\\n\\ndenial of § 2255 relief).\\n\\n Second, central to why the question remains open is that Johnson involved a\\n\\nfederal statute, while the Guidelines, even in their mandatory form, were agency-\\n\\n\\n 9\\n Even after Dimaya, Justice Sotomayor still believes the question remains\\nopen. See Brown v. United States, 139 S. Ct. 14, 15 (2018) (Sotomayor, J., dissenting\\nfrom denial of certiorari) (“But for petitioners like Brown, who were sentenced long\\nbefore Johnson, this Court has thus far left the validity of their sentences an open\\nquestion. The Court’s decision today all but ensures that the question will never be\\nanswered.” (citation omitted)).\\n 23\\n\\fcreated rules formed by the U.S. Sentencing Commission to supplement existing,\\n\\ncongressionally-enacted statutory maximum and minimum sentencing ranges. While\\n\\nthe Guidelines established a mandatory range, this mandatory range always fell\\n\\nwithin the statutory minimum and maximum affixed by Congress. See USSG\\n\\n§ 5G1.1. Thus, regardless of any vagueness in the mandatory Guidelines, the\\n\\nSupreme Court might conclude the statutory scheme enacted by Congress placed the\\n\\ndefendant on fair notice of the possible penalties he faced for committing an offense.\\n\\nCf. Beckles, 137 S. Ct. at 893 (“By specifying ‘the range of penalties that prosecutors\\n\\nand judges may seek and impose,’ Congress ha[s] ‘fulfilled its duty.’” (quoting\\n\\nBatchelder, 442 U.S. at 126)); id. at 894 (“All of the notice required is provided by\\n\\nthe applicable statutory range, which establishes the permissible bounds of the\\n\\ncourt’s sentencing discretion.”).10\\n\\n Third, where the Guidelines replaced an open-ended sentencing scheme under\\n\\nwhich judges could impose any sentence within the statutory range, even a somewhat\\n\\nvague residual clause in the Guidelines provided more guidance to sentencing judges\\n\\nthan existed prior to the mandatory Guidelines.11 See In re Griffin, 823 F.3d 1350,\\n\\n\\n 10\\n By concluding that the Supreme Court might not strike the residual clause in\\nthe mandatory Guidelines as void for vagueness, we do not mean to suggest the Court\\nwill reach such a result.\\n 11\\n Mr. Pullen does not identify any case holding that an open-ended sentencing\\nscheme under which a judge could impose any sentence between a properly\\nannounced statutory minimum and statutory maximum failed under the Due Process\\nClause and the void for vagueness doctrine.\\n\\n\\n 24\\n\\f1354–55 (11th Cir. 2016) (per curiam) (“Because there is no constitutional right to\\n\\nsentencing only under guidelines, the limitations the Guidelines place on a judge’s\\n\\ndiscretion cannot violate a defendant’s right to due process by reason of being vague.\\n\\n. . . Even vague guidelines cabin discretion more than no guidelines at all.”).12 And,\\n\\nbecause the Supreme Court has already indicated in Beckles that a defendant received\\n\\nfair notice of the broad, but specified, range of penalties he faced under the statutory\\n\\nscheme, 137 S. Ct. at 894–95, and it could reasonably conclude that the sentencing\\n\\njudge’s discretion was more cabined with the residual clause in USSG § 4B1.2(a)(2)\\n\\nthan in the absence of any Guidelines, the Court might conclude that the two\\n\\nconcerns underlying the void for vagueness doctrine are not present in the context of\\n\\nthe mandatory Guidelines.\\n\\n\\n\\n\\n 12\\n To be sure, the Supreme Court could conclude the language of USSG\\n§ 4B1.2, within the context of the mandatory Guidelines, did not satisfy due process\\nand void for vagueness considerations. Justice Sotomayor suggested the possibility of\\nsuch a result within her concurrence in Beckles:\\n\\n [A] district court’s reliance on a vague Guideline [such as U.S.S.G. § 4B1.2]\\n creates serious risk of “arbitrary enforcement.” . . . It introduces an\\n unacceptable degree of arbitrariness into sentencing proceedings to begin by\\n applying a rule that is so vague that efforts to interpret it boil down to\\n guesswork and intuition.”\\n\\n137 S. Ct. at 901 (Sotomayor, J., concurring) (citations omitted). The point is that the\\nSupreme Court has not yet answered the question. This is fatal to Mr. Pullen’s\\nsuccessive § 2255 motion, especially within in the context of a § 2255(h)(2) analysis\\nwhere Mr. Pullen must identify a new rule retroactively applicable to his claim for\\nrelief.\\n\\n 25\\n\\f In accord with the second and third reasons discussed above, Beckles observed\\n\\nthat the Court has “invalidated two kinds of criminal laws as ‘void for vagueness’:\\n\\nlaws that define criminal offenses and laws that fix the permissible sentences for\\n\\ncriminal offenses.” Id. at 892 (first and third emphases added). As to the second type\\n\\nof laws, “‘statutes fixing sentences’ must specify the range of available sentences\\n\\nwith ‘sufficient clarity.’” Id. (emphasis added) (first quoting Johnson, 135 S. Ct. at\\n\\n2557, then quoting United States v. Batchelder, 442 U.S. 114, 123 (1979)). But, the\\n\\nmandatory Guidelines were not laws or statutes; rather, they merely operated like\\n\\nstatutes. Thus, while the Supreme Court might one day conclude, by relying on the\\n\\nactual innocence gateway,13 that the mandatory Guidelines sufficiently took the form\\n\\nof a law or a statute so as to expose the mandatory Guidelines to a void for vagueness\\n\\nchallenge, such a conclusion or rule is (1) debatable and (2) essential to Mr. Pullen’s\\n\\nability to prevail. Accordingly, Mr. Pullen’s § 2255 motion is dependent on a rule not\\n\\nyet established by the Supreme Court and, consequently, not made retroactively\\n\\napplicable by the Court.14 This conclusion provides a sufficient basis to preclude Mr.\\n\\n\\n 13\\n This circuit does not recognize actual innocence in the sentencing context,\\nexcept in capital sentences. See United States v. Denny, 694 F.3d 1185, 1191 (10th\\nCir. 2012) (“[A] defendant cannot be actually innocent of a noncapital sentence[.]”\\n(internal quotation marks omitted)). But other circuits do permit such arguments, see\\nCristin v. Brennan, 281 F.3d 404, 421–22 (3d Cir. 2002) (collecting cases), and the\\nSupreme Court has left open the question of whether a prisoner can rely on the actual\\ninnocence gateway to challenge a noncapital sentence, see Dretke v. Haley, 541 U.S.\\n386, 393–94 (2004).\\n 14\\n The Court could conclude that the mandatory Guidelines, although not\\nstatutes, are subject to a void for vagueness challenge and that they do not satisfy due\\n\\n 26\\n\\fPullen from proceeding on his § 2255 motion. See Blackstone, 903 F.3d at 1028;\\n\\nRusso, 902 F.3d at 883.\\n\\n3. Summation\\n\\n Mr. Pullen is not entitled to proceed on his § 2255 motion under his iteration\\n\\nof the new rule from Johnson. Accordingly, the district court correctly concluded Mr.\\n\\nPullen failed to actually satisfy the precondition established by § 2255(h)(2) for filing\\n\\na second or successive § 2255 motion. This conclusion is consistent with the rulings\\n\\nof six of our seven sibling circuits, which deny § 2255 relief because Johnson either\\n\\n(1) did not recognize a new right applicable to the mandatory Sentencing Guidelines\\n\\nfor purposes of the requirement in 28 U.S.C. § 2255(f)(3) or (2) did not create a new\\n\\nrule applicable to the mandatory Sentencing Guidelines for purposes of meeting the\\n\\nrequirements in 28 U.S.C. § 2255(h)(2). See Blackstone, 903 F.3d at 1028 (denying\\n\\n§ 2255 relief under § 2255(f)(3) as Johnson did not recognize right as to mandatory\\n\\nGuidelines); Russo, 902 F.3d at 883–84 (same); Green, 898 F.3d at 321–33 (same);\\n\\nBrown, 868 F.3d at 301–02 (same); Raybon, 867 F.3d at 629–31 (same); In re\\n\\n\\n\\nprocess concerns because they permitted judges to prescribe sentencing ranges\\narbitrarily. See Beckles, 137 S. Ct. at 894-95 (explaining that a vague law which\\npermits judges to prescribe sentencing ranges invites arbitrary enforcement). But, to\\ndate, the Supreme Court has not announced a new rule retroactively applicable to the\\nmandatory Guidelines. Nor, as apparent from the denials of certiorari, has the\\nSupreme Court seen fit to take up the issue of Johnson’s impact on the mandatory\\nGuidelines. And unless and until it does, Mr. Pullen cannot establish that his\\nsuccessive § 2255 motion actually relies on a new rule for purposes of authorization\\nunder § 2255(h)(2).\\n\\n\\n 27\\n\\fGriffin, 823 F.3d at 1354–56 (denying authorization under § 2255(h)(2) because\\n\\nJohnson did not announce new rule applicable to the mandatory Guidelines).15 But\\n\\nsee Cross, 892 F.3d at 294.16 It is also consistent with the Supreme Court’s recent\\n\\ndenials of certiorari on a series of petitions seeking reversal of the aforementioned\\n\\ncircuit decisions. And while denials of certiorari often do not shed light on the merits\\n\\n\\n 15\\n Although the Fourth, Sixth and Eleventh Circuits reached their decisions\\nbefore Dimaya, the Sixth and Eleventh Circuits continue to rely respectively upon\\nRaybon and Griffin after Dimaya. See Robinson v. United States, 736 F. App’x 599,\\n599–600 (6th Cir. 2018) (holding Raybon had not been overruled by a Supreme Court\\ndecision and remained law of the circuit); Foxx v. United States, 736 F. App’x 253,\\n254 (11th Cir. 2018) (“[W]e cannot deviate from In re Griffin given the current state\\nof the law, and this forecloses Foxx’s appeal.”); Lewis v. United States, 733 F. App’x\\n501, 503 (11th Cir. 2018) (concluding In re Griffin “remains binding”). It does not\\nappear the Fourth Circuit has revisited the issue since Dimaya.\\n Separately, we observe that while In re Griffin involved the denial of\\nauthorization for failing to make a prima facie showing under § 2255(h)(2) and 28\\nU.S.C. § 2244(b)(3), 823 F.3d 1350, 1351, 1354–56 (11th Cir. 2016) (per curiam),\\nMr. Pullen already passed through the prima facie gate when we granted\\nauthorization. Thus, rather than relying on § 2244(b)(3) when dismissing Mr.\\nPullen’s § 2255 motion, the district court correctly relied on § 2244(b)(4) to conclude\\nMr. Pullen did not satisfy the requirements set forth by § 2255(h)(2).\\n 16\\n Mr. Pullen argues the First Circuit, in Moore v. United States, 871 F.3d 72\\n(1st Cir. 2017), reached the same result as the Seventh Circuit. Moore, however,\\ninvolved a preliminary, or prima facie, determination under 28 U.S.C. § 2244(b)(3)\\nthat a § 2255 movant could rely on Johnson to challenge the mandatory Guidelines\\nand not the conclusion that the second or successive § 2255 motion was actually\\npremised on a new rule of constitutional law made retroactive by the Supreme Court\\nfor purposes of the 28 U.S.C. § 2244(b)(4) analysis. See Moore, 871 F.3d at 80\\n(“Having explained the focused yet tentative nature of the examination called for in\\nevaluating a request to file a second or successive § 2255 motion, we turn next to\\nMoore’s motion.”). Thus, even if other language in Moore suggests the panel of the\\nFirst Circuit would have reached the same conclusion had it been conducting a\\n§ 2244(b)(4) analysis, see id. at 85, Moore does not establish any binding precedent\\nas to the § 2244(b)(4) question.\\n\\n\\n 28\\n\\fof an issue, see United States v. Carver, 260 U.S. 482, 490 (1923), these denials of\\n\\ncertiorari (1) were over a two justice dissent, which expressly states the question is\\n\\nopen and not likely to ever be resolved; and (2) the individual defendants are now\\n\\nprecluded from filing new and timely § 2255 motions based on Johnson should the\\n\\nSupreme Court later adopt the position advanced in their certiorari petitions.17\\n\\n IV. CONCLUSION\\n\\n We conclude Johnson did not create a new rule of constitutional law applicable to\\n\\nthe mandatory Guidelines because (1) Beckles suggests the void for vagueness doctrine’s\\n\\napplicability to the mandatory Guidelines remains an open question; (2) the Guidelines,\\n\\neven in their mandatory form, were not statutes; and (3) even a vague provision of the\\n\\nGuidelines provided more guidance to defendants and sentencing judges than did the\\n\\ncongressionally-enacted statutory minimum and maximum sentences that provided\\n\\ndefendants sufficient due process. Although the Supreme Court might reject all of these\\n\\nconsiderations and invalidate the residual clause of the mandatory Guidelines, it has not\\n\\nyet done so. Because Johnson did not create a new rule of constitutional law applicable to\\n\\n\\n\\n\\n 17\\n In concluding that, regardless of how the new rule from Johnson is phrased,\\nJohnson does not create a new rule of constitutional law relative to the mandatory\\nGuidelines, we find it unnecessary to decide whether Greer’s statement of the rule\\nfrom Johnson is too narrow in light of Dimaya. Rather, it is clear Greer’s holding,\\nthat Johnson does not create a new rule of constitutional law applicable to the\\nmandatory Guidelines, remains good law.\\n\\n\\n 29\\n\\fthe mandatory Guidelines, the district court properly denied relief and dismissed Mr.\\n\\nPullen’s § 2255 motion pursuant to § 2255(h)(2). Accordingly, we AFFIRM.18\\n\\n\\n\\n\\n 18\\n We DENY Mr. Pullen’s motion to file a pro se opening brief and his motion\\nto file a pro se supplemental brief.\\n 30\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4362712/\", \"author_raw\": \"McHUGH\"}]}"},"judge1":{"kind":"string","value":"MCHUGH"},"judge2":{"kind":"string","value":"MORITZ"},"judge3":{"kind":"string","value":"EID"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4585459/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Bobby G. PULLEN, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 29, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n No. 17-3194\n v.\n\n BOBBY G. PULLEN,\n\n Defendant - Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Kansas\n (D.C. Nos. 5:16-CV-04067-JAR and 5:98-CR-40080-JAR-1)\n _________________________________\n\nDaniel T. Hansmeier, Appellate Chief, Kansas Federal Public Defender (Melody\nBrannon, Federal Public Defender, and Kirk Redmond, First Assistant Federal Public\nDefender), Kansas City, Kansas, for Defendant - Appellant.\n\nJared S. Maag, Assistant United States Attorney (Thomas E. Beall, former United States\nAttorney; Stephen R. McAllister, United States Attorney; and James A. Brown, Assistant\nUnited States Attorney, with him on the briefs), Topeka, Kansas, for Plaintiff - Appellee.\n _________________________________\n\nBefore McHUGH, MORITZ, and EID, Circuit Judges.\n _________________________________\n\nMcHUGH, Circuit Judge.\n _________________________________\n\n\n The district court sentenced Bobby G. Pullen as a career offender pursuant to\n\nUnited States Sentencing Guidelines Manual (“USSG”) § 4B1.1 at a time when the\n\fSentencing Guidelines were mandatory. In 2015, the Supreme Court decided Johnson v.\n\nUnited States, 135 S. Ct. 2551 (2015), holding the residual clause of 18 U.S.C.\n\n§ 924(e)(2)(B)(ii) is unconstitutionally vague. As the residual clause of § 924(e)(2)(B)(ii)\n\nis identical in wording to the residual clause of USSG § 4B1.2 (a definitional provision\n\nfor USSG § 4B1.1), Mr. Pullen, relying on Johnson, moved for authorization to file a\n\nsecond or successive 28 U.S.C. § 2255 motion. This court determined Mr. Pullen made a\n\nprima facie showing that Johnson created a retroactive, new rule of constitutional law\n\napplicable to the mandatory Guidelines. The district court, however, concluded Johnson\n\ndid not actually create a new rule applicable to the mandatory Guidelines and dismissed\n\nMr. Pullen’s § 2255 motion pursuant to 28 U.S.C. § 2255(h)(2), a provision governing\n\nauthorization to file a second or successive § 2255 motion. The district court did,\n\nhowever, grant Mr. Pullen a certificate of appealability (“COA”).\n\n On appeal, Mr. Pullen argues the district court procedurally erred when it relied on\n\n§ 2255(h)(2) as the basis for dismissing his § 2255 motion and substantively erred when\n\nit determined Johnson did not create a new rule applicable to the mandatory Guidelines.\n\nAs to Mr. Pullen’s procedural challenge, our recent decision in United States v. Murphy,\n\n887 F.3d 1064 (10th Cir.), cert. denied, 2018 WL 3462559 (Oct. 29, 2018), forecloses his\n\nargument. With respect to Mr. Pullen’s substantive challenge, the Supreme Court has\n\nnever recognized a void for vagueness challenge to the Guidelines and so Johnson neither\n\ncreates a new rule applicable to the Guidelines nor dictates that any provision of the\n\n\n\n\n 2\n\fGuidelines is subject to a void for vagueness challenge. Accordingly, we affirm the\n\ndistrict court’s judgment.\n\n I. BACKGROUND\n\n In 1999, a jury convicted Mr. Pullen of one count of possession with intent to\n\ndistribute 100 kilograms or more of marihuana, or aiding and abetting the same, in\n\nviolation of 21 U.S.C. § 841(a)(1), (b)(1)(B), 18 U.S.C. § 2. At sentencing, the district\n\ncourt established a total offense level of thirty-four and a criminal history category of VI.\n\nThe offense level and criminal history category resulted from application of the career\n\noffender provision of USSG § 4B1.1 (1998). Application of the career offender provision\n\nrested in part on a prior Missouri conviction for escape. Under the offense level and\n\ncriminal history category compelled by the career offender provision, the presentence\n\ninvestigation report set Mr. Pullen’s Guidelines range at 262 to 327 months’\n\nimprisonment. The district court sentenced Mr. Pullen to 262 months’ imprisonment.\n\nAbsent designation as a career offender, Mr. Pullen’s Guidelines range would have been\n\n92 to 115 months’ imprisonment.\n\n In 2006, Mr. Pullen filed his first motion under 28 U.S.C. § 2255, which the\n\ndistrict court dismissed as untimely. United States v. Pullen, No. 98–40080–JAR,\n\n2006 WL 1133232, at *1 (D. Kan. Apr. 21, 2006). In 2015, the Supreme Court\n\ndecided Johnson, relying on the void for vagueness doctrine to invalidate the residual\n\nclause of 18 U.S.C. § 924(e)(2)(B)(ii). See 135 S. Ct. at 2563. This residual clause is\n\npart of the Armed Career Criminal Act (“ACCA”), which enhances the statutory\n\nmandatory minimum for certain defendants who have three or more previous\n\n 3\n\fconvictions “for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1).\n\nSection 924(e)(2)(B)(ii) defines “violent felony” to include an offense that “is\n\nburglary, arson, or extortion, involves use of explosives, or otherwise involves\n\nconduct that presents a serious potential risk of physical injury to another.”\n\n(emphasis added). The clause emphasized above is the residual clause invalidated in\n\nJohnson. Importantly, the residual clause of § 924(e)(2)(B)(ii) is identical to the\n\nresidual clause in USSG § 4B1.2, which defined “crime of violence” for purposes of\n\nthe career offender guideline as an offense that “is burglary of a dwelling, arson, or\n\nextortion, involves use of explosives, or otherwise involves conduct that presents a\n\nserious potential risk of physical injury to another.” USSG 4B1.2(a)(2) (emphasis\n\nadded).\n\n Within one year of the decision in Johnson, Mr. Pullen, relying on 28 U.S.C.\n\n§ 2255(h)(2) and arguing Johnson created a new rule of constitutional law applicable\n\nto the mandatory Guidelines, filed a motion in this court for authorization to file a\n\nsecond or successive § 2255 motion. We granted the motion for authorization and\n\nMr. Pullen filed his § 2255 motion in district court. The Government filed a response\n\nin which it conceded Mr. Pullen’s Missouri escape conviction qualified as a “crime\n\nof violence” only under the residual clause of USSG § 4B1.2(a)(2) but argued, in\n\npart, that (1) Johnson did not create a new rule applicable to the mandatory\n\nGuidelines; (2) a rule allowing void for vagueness challenges to the Guidelines\n\nwould be a new rule that the Supreme Court had not yet recognized; and (3) Mr.\n\nPullen’s motion was, therefore, untimely for purposes of 28 U.S.C. § 2255(f).\n\n 4\n\f The district court focused its analysis on § 2255(h)(2)’s requirement that Mr.\n\nPullen’s motion be based on “a new rule of constitutional law, made retroactive to cases\n\non collateral review by the Supreme Court.” See ROA at 184 (quoting § 2255(h)(2)). The\n\ndistrict court concluded Mr. Pullen’s motion was untimely and did not satisfy\n\n§ 2255(h)(2) because relief was premised on the void for vagueness doctrine applying to\n\nthe Guidelines but neither Johnson nor any other Supreme Court case has recognized a\n\nvoid for vagueness challenge to the Guidelines. Thus, the district court, relying on\n\n§ 2255(h)(2), dismissed Mr. Pullen’s motion.\n\n The district court, however, granted Mr. Pullen a COA. In pertinent part, the COA\n\nreads: “Here, the Court concludes that reasonable jurists could debate whether the Court\n\nwas correct in its ruling. The Court thus grants a COA on the issue of whether Mr.\n\nPullen’s motion falls within the scope of 28 U.S.C. § 2255(h)(2).” ROA at 187. In his\n\nopening brief, Mr. Pullen focuses on the § 2255(h)(2) nature of the dismissal, arguing this\n\nprovision is directed at the circuit court’s authority to grant a prisoner authorization to file\n\na second or successive § 2255 motion and, once a circuit court grants authorization, the\n\ndistrict court may not dismiss the motion pursuant to § 2255(h)(2).1 In its response brief,\n\nthe Government argues a grant of authorization by a circuit court only preliminarily\n\ncertifies that the movant satisfied the preconditions for a second or successive § 2255\n\n\n\n 1\n Mr. Pullen moved for leave to file a pro se opening brief. Because Mr. Pullen\nis represented by counsel, we deny his motion. See United States v. McDermott, 64\nF.3d 1448, 1450 n.1 (10th Cir. 1995) (declining to consider issues raised in pro se\nbrief based on “policy of addressing on direct appeal only those issues raised by\ncounsel”).\n 5\n\fmotion and that the district court has a secondary gatekeeping role to assure the motion\n\ndoes, in fact, satisfy § 2255(h)(2). The Government further argues the district court\n\ncorrectly concluded Johnson did not create a retroactive, new rule applicable to the\n\nmandatory Guidelines.\n\n After briefing concluded, several key developments occurred in the law\n\nsurrounding Johnson. First, the Supreme Court issued its decision in Sessions v. Dimaya,\n\nholding application of Johnson resulted in the conclusion that 18 U.S.C. § 16(b)—which\n\nis similarly, but not identically, worded to the residual clause of § 924(e)(2)(B)(ii)—was\n\nunconstitutionally vague. 138 S. Ct. 1204 (2018). Second, the Supreme Court denied\n\ncertiorari petitions in several cases where circuit courts rejected § 2255 Johnson-based\n\nchallenges to the residual clause in USSG § 4B1.2. See, e.g., Raybon v. United States,\n\n138 S. Ct. 2661 (2018); Lester v. United States, 138 S. Ct. 2030 (2018). Third, several\n\nother circuit courts addressed whether Johnson created a retroactive, new rule applicable\n\nto the residual clause of USSG § 4B1.2. See United States v. Blackstone, 903 F.3d 1020,\n\n1025–28 (9th Cir. 2018) (holding Supreme Court has yet to announce rule that mandatory\n\nGuidelines are susceptible to void for vagueness challenge); Russo v. United States, 902\n\nF.3d 880, 882–84 (8th Cir. 2018) (denying § 2255 relief and holding prisoner was not\n\nasserting a right based on Johnson because reasonable minds could debate whether\n\nJohnson announced a new rule of constitutional law applicable to the mandatory\n\nGuidelines); United States v. Green, 898 F.3d 315, 319–23 (3d Cir. 2018) (holding\n\n§ 2255 motion untimely because Beckles v. United States, 137 S. Ct. 886 (2017), favors\n\nconclusion Johnson did not create new rule applicable to mandatory Guidelines and that\n\n 6\n\fissue remains open); Cross v. United States, 892 F.3d 288, 299–306 (7th Cir. 2018)\n\n(holding Johnson created new rule applicable to all vague, mandatory residual clauses\n\nthat enhance punishment such that § 2255 relief from sentence imposed under mandatory\n\nGuidelines scheme was proper).\n\n In the midst of these developments, we ordered the parties to submit\n\nsimultaneous supplemental briefs. In his supplemental brief, Mr. Pullen argues\n\nDimaya teaches us that Johnson created a new rule that applies beyond 18 U.S.C.\n\n§ 924(e)(2)(B)(ii).2 And Mr. Pullen articulates the new rule from Johnson as a\n\n due process right not to have a statutory penalty range fixed by a\n provision that defines a prior conviction as one involving “conduct that\n presents a serious potential risk of physical injury to another,” and that\n uses an ordinary-case categorical approach to measure whether the\n conviction is sufficiently risky to count under the provision.\n\nPullen Supp. Br. at 5–6 (not identifying source of quotation). The Government argues\n\nneither Dimaya nor Johnson addressed the constitutionality of a Guidelines provision\n\nor whether the void for vagueness doctrine applies to the Guidelines. Rather, the\n\nGovernment argues, Beckles provides the best guidance on whether Johnson created\n\na new rule relative to the mandatory Guidelines. The majority opinion in Beckles\n\nrejected a Johnson-based challenge to the advisory Guidelines and Justice\n\nSotomayor, in a concurrence, indicated that Johnson’s applicability to the mandatory\n\nGuidelines “remains an open question.” Gov. Supp. Br. at 5. The Government\n\n\n 2\n Out of concern that his counsel might not have filed a supplemental brief,\nMr. Pullen moved to file a pro se supplemental brief. As Mr. Pullen is represented by\ncounsel and his counsel did file a supplemental brief, we deny Mr. Pullen’s motion.\nSee McDermott, 64 F.3d at 1150 n.1.\n 7\n\ftheorizes that if the question remains open, Johnson does not create a new rule\n\napplicable to the mandatory Guidelines because, if a question is “expressly left open,\n\nthen the right, by definition, has not been recognized.” Id. at 5–6 (quoting United\n\nStates v. Brown, 868 F.3d 297, 299 n.1 (4th Cir. 2017), cert. denied, 139 S. Ct. 14\n\n(2018)).\n\n Finally, subsequent to oral argument, the Supreme Court, over a two justice\n\ndissent, denied certiorari petitions in a second set of cases where circuit courts denied\n\n§ 2255 motions raising Johnson-based challenges to the residual clause of USSG\n\n§ 4B1.2, as applied when the Guidelines were mandatory. Brown v. United States,\n\n139 S. Ct. 14 (2018); see Gipson v. United States, 2018 WL 1993703 (Oct. 15, 2018);\n\nLewis v. United States, 2018 WL 3094227 (Oct. 15, 2018); Greer v. United States,\n\n2018 WL 2087987 (Oct. 15, 2018); Wilson v. United States, 2018 WL 2064772 (Oct.\n\n15, 2018); Molette v. United States, 2018 WL 1640168 (Oct. 15, 2018); Homrich v.\n\nUnited States, 2018 WL 2364812 (Oct. 15, 2018); Chubb v. United States, 2018 WL\n\n3024068 (Oct. 15, 2018); Smith v. United States, 2018 WL 3024136 (Oct. 15, 2018);\n\nBuckner v. United States, 2018 WL 3024166 (Oct. 15, 2018);3 see also Robinson v.\n\nUnited States, 2019 WL 113550 (Jan. 7, 2019); Garrett v. United States, 2018 WL\n\n\n 3\n Footnote 1 of the dissent from the denial of certiorari in Brown v. United\nStates indicates that the dissent also applies to the other nine orders denying\ncertiorari that issued on October 15, 2018. 139 S. Ct. 14, 14 n.1 (2018) (Sotomayor,\nJ., dissenting from denial of certiorari). Where Justice Ginsburg joined the dissent in\nBrown in full and without reservation, we interpret footnote 1 as indicating that\nJustice Ginsburg dissented from the other nine denials of certiorari issued on October\n15, 2018, even though the orders in those denials do not specifically identify Justice\nGinsburg as dissenting.\n 8\n\f3660076 (Dec. 3, 2018); Bowens v. United States, 2018 WL 5113456 (Nov. 19,\n\n2018); Callins v. United States, 2018 WL 4932460 (Nov. 13, 2018).\n\n II. STANDARD OF REVIEW\n\n “Where, as here, the district court does not hold an evidentiary hearing, but\n\nrather denies the motion as a matter of law . . . our review is strictly de novo.” United\n\nStates v. Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015) (quotation marks omitted).\n\nFurther, “[w]e are not bound by the district court’s reasoning and may affirm on any\n\nground adequately supported by the record.” United States v. Greer, 881 F.3d 1241,\n\n1244 (10th Cir. 2018), (internal quotation marks omitted) cert. denied 2018 WL\n\n2087987; see Grossman v. Bruce, 447 F.3d 801, 805 n.2 (10th Cir. 2006) (“[W]e are\n\nfree to affirm [the denial of 28 U.S.C. § 2241 relief] on any ground for which there is\n\na sufficient record to permit conclusions of law.”).\n\n III. DISCUSSION\n\n A. Threshold Requirement for Second or Successive § 2255 Motion\n\n Although prisoners who have not filed a prior § 2255 motion may file such a\n\nmotion directly in the district court, a prisoner who filed a prior § 2255 motion must\n\nobtain authorization from a circuit court judge prior to filing the motion in district\n\ncourt. See 28 U.S.C. § 2244(a); see also id. § 2244(b)(3)(A) (“Before a second or\n\nsuccessive application permitted by this section is filed in the district court, the\n\napplicant shall move in the appropriate court of appeals for an order authorizing the\n\ndistrict court to consider the application.”). Section 2255(h) of Title 28 sets out the\n\nrequirements for authorization and states, in pertinent part:\n\n 9\n\f A second or successive motion must be certified as provided in section\n 2244 by a panel of the appropriate court of appeals to contain—\n ...\n (2) a new rule of constitutional law, made retroactive to cases on\n collateral review by the Supreme Court, that was previously\n unavailable.\n\nTo obtain authorization to file a second or successive § 2255 motion, a movant\n\nrelying on a new rule of constitutional law must make a prima facie showing to the\n\ncircuit court that he satisfies the § 2255(h)(2) requirements. 28 U.S.C.\n\n§ 2244(b)(3)(C).\n\n B. Secondary Requirement for Second or Successive § 2255 Motion\n\n Having concluded that Mr. Pullen made a prima facie showing to the circuit court\n\nthat he satisfies the § 2255(h)(2) requirements, we next consider whether the district\n\ncourt possessed the authority to deny Mr. Pullen relief and dismiss his § 2255 motion\n\npursuant to § 2255(h)(2) after the circuit court certified his prima facie compliance.\n\nOur recent decision in Murphy controls our analysis.\n\n As discussed, “[u]nder § 2255(h)(2), a second or successive [§ 2255] motion\n\nmust be certified—as provided in 28 U.S.C. § 2244—by a court of appeals to contain\n\na previously unavailable new rule of constitutional law that the Supreme Court has\n\nmade retroactively applicable to cases on collateral review.” Murphy, 887 F.3d at\n\n1067. In turn, § 2244(b)(3) instructs that “to receive certification, a motion need only\n\nmake a prima facie showing that it satisfies § 2255’s criteria.” Id. (emphasis added).\n\nBecause § 2244(b)(3) requires only a prima facie showing for certification by the\n\ncourt of appeals, certification amounts to only a “preliminary” determination that the\n\n\n 10\n\fsecond or successive § 2255 motion contains a claim based on a new rule of\n\nconstitutional law made retroactive on collateral review by the Supreme Court. Id.\n\nThe “preliminary” nature of this determination means the movant must pass through\n\na second procedural gate once in district court: “[P]ursuant to § 2244(b)(4), once the\n\ncourt of appeals grants authorization, the district court must determine whether the\n\npetition does, in fact, satisfy the requirements for filing a second or successive\n\nmotion before the merits of the motion can be considered.” Id. (internal quotation\n\nmarks omitted). In summation, the two procedural gates a prisoner must pass through\n\nbefore obtaining review of the merits of a second or successive § 2255 motion are:\n\n (1) a prima facie showing to the court of appeals that the motion\n satisfies the requirements of § 2255(h), defined as “a sufficient\n showing of possible merit to warrant a fuller exploration by the\n district court” and\n (2) a determination by the district court that the petition does, in fact,\n satisfy those requirements.\n\nId. at 1068 (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997)).\n\n In accord with this two-gate approach, the district court was required to\n\nanalyze whether Mr. Pullen’s § 2255 motion actually relied on “a new rule of\n\nconstitutional law, made retroactive to cases on collateral review by the Supreme\n\nCourt” as required by § 2255(h)(2) and § 2244(b)(4). Concluding that Mr. Pullen’s\n\n§ 2255 motion did not actually rely on a new rule of constitutional law applicable to\n\nthe mandatory Guidelines, the district court relied on § 2255(h)(2) to dismiss the\n\nmotion.\n\n\n\n\n 11\n\f With these requirements in mind, we discuss the history of the Sentencing\n\nGuidelines and of Johnson and its progeny before turning to the issue of whether the\n\ndistrict court correctly determined that Mr. Pullen cannot actually satisfy the\n\nrequirements of § 2255(h)(2). See 28 U.S.C. § 2244(b)(4). That is, whether his\n\nmotion relies on a new rule of constitutional law already decided and deemed\n\nretroactively applicable by the Supreme Court.\n\n C. Legal Background\n\n1. History of the Guidelines\n\n In 1984, Congress authorized the United States Sentencing Commission to\n\npromulgate the Sentencing Guidelines. Mistretta v. United States, 488 U.S. 361, 362\n\n(1989). Prior to the adoption of the Guidelines, the often expansive statutory\n\nminimum and maximum penalties for an offense served as the only constraint on a\n\nfederal judge’s discretion at sentencing. Id. at 364 (describing the pre-Guidelines\n\nsentencing scheme as one where “Congress delegated almost unfettered discretion to\n\nthe sentencing judge to determine what the sentence should be within the customarily\n\nwide range so selected”). One of the primary purposes behind the creation of the\n\nGuidelines was to “promote uniformity and proportionality in sentencing” across the\n\ncountry. United States v. Jackson, 921 F.2d 985, 988 (10th Cir. Dec. 17, 1990) (en\n\nbanc). And in passing the Sentencing Reform Act of 1984, Congress intentionally\n\n“settl[ed] on a mandatory-guideline system,” rather than an advisory system.\n\nMistretta, 488 U.S. at 367.\n\n\n\n 12\n\f Codifying the generally mandatory nature of the Guidelines, Congress enacted\n\n18 U.S.C. § 3553(b)(1), which states, in pertinent part:\n\n Except as provided in paragraph (2), the court shall impose a sentence\n of the kind, and within the range, [produced by the Guidelines] unless\n the court finds that there exists an aggravating or mitigating\n circumstance of a kind, or to a degree, not adequately taken into\n consideration by the Sentencing Commission in formulating the\n guidelines that should result in a sentence different from that described.\n In determining whether a circumstance was adequately taken into\n consideration, the court shall consider only the sentencing guidelines,\n policy statements, and official commentary of the Sentencing\n Commission.\n\n(emphasis added). In 2005, the Supreme Court struck down the above-quoted\n\nstatutory provision, concluding the Sixth Amendment precluded a sentencing judge\n\nfrom finding facts that effectively increased a defendant’s punishment where those\n\nfacts had not been found by a jury or admitted by the defendant as part of a guilty\n\nplea. United States v. Booker, 543 U.S. 220, 244 (2005).4 In reaching this conclusion,\n\nthe Court held the Guidelines acted like a statute because a sentencing judge’s ability\n\nto depart from the Guidelines range was so strictly limited that the Guidelines range\n\ndrove a defendant’s sentence in the vast majority of cases. Id. at 234. To solve the\n\nconstitutional problem with a mandatory-Guidelines scheme, the Supreme Court\n\nsevered the portion of the Sentencing Reform Act of 1984 that made the Guidelines\n\n\n\n\n 4\n Despite Booker’s statement about judicial factfinding at sentencing violating\nthe Sixth Amendment, an exception to this general prohibition exists where the\ndistrict court makes factual findings regarding a defendant’s prior criminal history.\nSee Apprendi v. New Jersey, 530 U.S. 466, 496 (2000).\n 13\n\fmandatory, transforming the Guidelines into their present-day, advisory form. Id. at\n\n265; see also id. at 245–60.\n\n2. Johnson and its Progeny\n\n In 2015, the Supreme Court addressed the constitutionality of 18 U.S.C.\n\n§ 924(e)(2)(B). Section 924(e)(2)(B) defined “violent felony” as\n\n any crime punishable by imprisonment for a term exceeding one year\n . . . that—\n (i) has as an element the use, attempted use, or threatened use of\n physical force against the person of another; or\n (ii) is burglary, arson, or extortion, involves use of explosives, or\n otherwise involves conduct that presents a serious potential\n risk of physical injury to another\n\n(emphasis added). In Johnson, the Court concluded the emphasized language, known\n\nas the residual clause, was void for vagueness because “the indeterminacy of the\n\nwide-ranging inquiry required by the residual clause both denies fair notice to\n\ndefendants and invites arbitrary enforcement by judges.” 135 S. Ct. at 2557; see id. at\n\n2556 (identifying “fail[ure] to give ordinary people fair notice of the conduct it\n\npunishes” and being “so standardless that it invites arbitrary enforcement” as two\n\nbases for finding statute unconstitutionally vague). Johnson, however, limited its\n\nholding to the residual clause of § 924(e)(2)(B)(ii). See id. at 2563 (“Today’s\n\ndecision does not call into question application of the [ACCA] to the four enumerated\n\noffenses, or the remainder of the [ACCA’s] definition of a violent felony.”); see also\n\nGreer, 881 F.3d at 1248 (“[T]he only right recognized by the Supreme Court in\n\nJohnson was a defendant’s right not to have his sentence increased under the residual\n\nclause of the ACCA.”).\n\n 14\n\f In the aftermath of Johnson, courts were flooded with challenges, both on\n\ndirect appeal and under § 2255, to convictions or sentences supported by\n\n§ 924(e)(2)(B)(ii) or other provisions resembling § 924(e)(2)(B)(ii). A trio of\n\nSupreme Court cases shape the state of the law post-Johnson. First, in Welch v.\n\nUnited States, the Court held Johnson announced a new rule of constitutional law\n\nthat applied retroactively to cases on collateral review. 136 S. Ct. 1257, 1264–65\n\n(2016). Although Welch never explicitly states the rule from Johnson, the majority\n\nopinion suggests the rule was limited to the ACCA. See id. at 1265 (“By striking\n\ndown the residual clause as void for vagueness, Johnson changed the substantive\n\nreach of the Armed Career Criminal Act, altering the range of conduct or the class of\n\npersons that the [Act] punishes . . . . The residual clause is invalid under Johnson, so\n\nit can no longer mandate or authorize any sentence. Johnson establishes . . . that even\n\nthe use of impeccable factfinding procedures could not legitimate a sentence based\n\non that clause.” (internal quotation marks omitted)). But see id. at 1272 (Thomas, J.,\n\ndissenting) (“Johnson’s new constitutional rule is that a law is unconstitutionally\n\nvague if it ‘requires a court to picture the kind of conduct that the crime involves in\n\n“the ordinary case,” and to judge whether that abstraction presents a serious potential\n\nrisk,’ of some result.” (quoting Johnson, 135 S. Ct. at 2557)).\n\n Second, in Beckles, the Court addressed whether the residual clause of USSG\n\n§ 4B1.2 of the advisory Guidelines was susceptible to a void for vagueness challenge\n\n\n\n\n 15\n\fsimilar to the challenge that prevailed in Johnson.5 See 137 S. Ct. at 890. Because the\n\nresidual clause of USSG § 4B1.2(a)(2) was identical to the language held void for\n\nvagueness in Johnson, several circuit courts, including this court, concluded the rule\n\nfrom Johnson necessitated the invalidation of the residual clause in § 4B1.2(a)(2)\n\nwithin the context of the advisory Guidelines. See United States v. Pawlak, 822 F.3d\n\n902 (6th Cir. 2016); United States v. Hurlburt, 835 F.3d 715 (7th Cir. 2016) (en\n\nbanc); United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015). But see United States\n\nv. Matchett, 802 F.3d 1185 (11th Cir. 2015) (rejecting void for vagueness challenge\n\nto advisory Guidelines).\n\n In Beckles, the Supreme Court rejected the position that the advisory\n\nGuidelines were susceptible to the rule from Johnson or a void for vagueness\n\n\n\n 5\n Recall that USSG § 4B1.2 defined “crime of violence” as:\n\n [A]ny offense under federal or state law, punishable by imprisonment\n for a term exceeding one year, that—\n (1) has as an element the use, attempted use, or threatened use of\n physical force against the person of another, or\n (2) is burglary of a dwelling, arson, or extortion, involves use of\n explosives, or otherwise involves conduct that presents a\n serious potential risk of physical injury to another.\n\nUSSG § 4B1.2(a) (1998–2015) (emphasis added). The emphasized language is the\nresidual clause that was at issue in Beckles v. United States, 137 S. Ct. 886 (2017),\nand is at issue in this case. In 2016, the Sentencing Commission passed an\namendment to the Guidelines adding several enumerated offenses to subsection (2)\nand removing the residual clause of the subsection. USSG Supp. to App. C., Amend\n798 at 131 (Nov. 1, 2016) (“Amendment 798”). Amendment 798, however, has no\nbearing on Mr. Pullen’s case as the Amendment does not apply retroactively. See\nUSSG § 1B1.10(d) (listing amendments that apply retroactively).\n\n 16\n\fchallenge. 137 S. Ct. at 894–95. In so holding, the Court observed it had “invalidated\n\ntwo kinds of criminal laws as ‘void for vagueness’: laws that define criminal offenses\n\nand laws that fix the permissible sentences for criminal offenses.” Id. at 892 (first and\n\nthird emphases added). The Beckles Court further observed that “‘statutes fixing\n\nsentences’ must specify the range of available sentences with ‘sufficient clarity,’” id.\n\n(emphasis added) (first quoting Johnson, 135 S. Ct. at 2557, then quoting United\n\nStates v. Batchelder, 442 U.S. 114, 123 (1979)), and that “[b]y specifying ‘the range\n\nof penalties that prosecutors and judges may seek and impose,’ Congress ha[s]\n\n‘fulfilled its duty’” to craft a law that comports with due process, id. at 893 (quoting\n\nBatchelder, 442 U.S. at 126). The Court then distinguished the advisory Guidelines,\n\nwhich “do not fix the permissible range of sentences,” from the “statute” at issue in\n\nJohnson, which did “fix[] permissible sentences.” Id. at 892. From this, the Court\n\nconcluded “[t]he advisory Guidelines . . . do not implicate the twin concerns\n\nunderlying [the] vagueness doctrine—providing notice and preventing arbitrary\n\nenforcement.” Id. at 894. As to the first of these concerns, “[a]ll of the notice\n\nrequired is provided by the applicable statutory range, which establishes the\n\npermissible bounds of the court’s sentencing discretion.” Id. Along those lines, the\n\nCourt stated, “[t]he Guidelines . . . do not regulate the public by prohibiting any\n\nconduct or by ‘establishing minimum and maximum penalties for any crime.’” Id. at\n\n895 (quoting Mistretta, 488 U.S. at 396).\n\n The majority opinion in Beckles, however, indicated that the second concern of\n\nthe void for vagueness doctrine—preventing arbitrary enforcement—was ameliorated\n\n 17\n\fby the advisory nature of the Guidelines post-Booker and the sentencing judge’s\n\ndiscretion to impose a sentence anywhere within the statutory range. Id. The\n\ndistinction between the discretion afforded sentencing judges under the advisory\n\nGuidelines, compared to the mandatory Guidelines, caught the attention of Justice\n\nSotomayor, whose concurrence stated:\n\n The Court’s adherence to the formalistic distinction between mandatory\n and advisory rules at least leaves open the question whether defendants\n sentenced to terms of imprisonment before our decision in United States\n v. Booker, 543 U.S. 220 (2005)—that is, during the period in which the\n Guidelines did “fix the permissible range of sentences”—may mount\n vagueness attacks on their sentences. That question is not presented by\n this case and I, like the majority, take no position on its appropriate\n resolution.\n\nId. at 903 n.4 (Sotomayor, J. concurring in the judgment) (citations omitted).\n\n Third, in Dimaya, the Supreme Court relied on the void for vagueness doctrine\n\nto strike down 18 U.S.C. § 16(b)’s definition of crime of violence, a provision the\n\nCourt described as “similarly worded” to the residual clause struck down in Johnson.\n\nDimaya, 138 S. Ct. at 1210. In so holding, the opinion of the Court made three\n\nstatements potentially important to determining the scope of the new rule from\n\nJohnson. First, Dimaya indicated its ruling was a product of “adhering” to the\n\nanalysis set forth in Johnson. Id. Second, Dimaya called Johnson “a straightforward\n\ndecision, with equally straightforward application here” such that the “reasoning” of\n\nJohnson “effectively resolved the [issue] before” the Court in Dimaya.6 Id. at 1213.\n\n\n 6\n Notably, Dimaya could have, but did not, state that any “rule” from Johnson\n“dictated” a result in Dimaya. Cf. Russo v. United States, 902 F.3d 880, 883 (8th Cir.\n\n 18\n\fFinally, Dimaya compared § 16(b) and § 924(e)(2)(B)(ii), stating that both statutes\n\n“‘require[] a court to picture the kind of conduct that the crime involves in “the\n\nordinary case” and to judge whether that abstraction presents’ some not-well-\n\nspecified-yet-sufficiently-large degree of risk.” Id. at 1216 (quoting Johnson, 135 S.\n\nCt. at 2556–57). Under this analytical framework, Dimaya concluded “§ 16(b)\n\nproduces, just as the ACCA’s residual clause did, ‘more unpredictability and\n\narbitrariness than the Due Process Clause tolerates.’” Id. at 1216 (quoting Johnson,\n\n135 S. Ct. at 2558).\n\n D. Analysis\n\n Based on Johnson and its progeny, Mr. Pullen describes the new and\n\nretroactive rule from Johnson as a right not to be sentenced under an ordinary-case\n\ncategorical approach requiring a judge to picture conduct of the crime and predict\n\nwhether that conduct presents a sufficiently large degree of risk. Before considering\n\nthe rule Mr. Pullen advances, we pause to address the iterations of the rule by this\n\ncourt and others. We then turn to the formulation of the rule endorsed by Mr. Pullen,\n\nultimately deciding it does not permit relief on a second or successive § 2255 claim\n\nchallenging the mandatory Guidelines because the Supreme Court has not yet\n\n\n\n\n2018) (quoting Teague v. Lane, 489 U.S. 288, 301 (1989), for proposition that “[a]\ncase announces a new rule if the result was not dictated by precedent existing at the\ntime the defendant’s conviction became final” and concluding that any rule relative\nto the mandatory Guidelines would be a new rule because the rule “is not dictated by\nJohnson”).\n 19\n\fannounced a rule with respect to the mandatory Guidelines. Thus, we agree with the\n\ndistrict court that Mr. Pullen’s motion does not actually satisfy § 2255(h)(2).\n\n1. Decisions Defining the Rule Announced in Johnson\n\n Several circuit court decisions, including our own decision in Greer, have\n\nstated the new rule created by Johnson as “a defendant’s right not to have his\n\nsentence increased under the residual clause of the ACCA.”7 Greer, 881 F.3d at\n\n1248; see also Green, 898 F.3d at 321 (“[I]n light of Beckles, Johnson’s holding as to\n\nthe residual clause in the ACCA created a right only as to the ACCA, and not a\n\nbroader right that applied to all similarly worded residual clauses, such as that found\n\nin the advisory Sentencing Guidelines.”); Brown, 868 F.3d at 303 (“Johnson only\n\nrecognized that ACCA’s residual clause was unconstitutionally vague.”). If this\n\nphrasing of the new rule from Johnson is correct, Mr. Pullen is not entitled to\n\nproceed on his § 2255 motion because his Guidelines range was increased as a result\n\nof application of USSG § 4B1.1 and the residual clause of USSG § 4B1.2(a)(2) of the\n\nmandatory Guidelines and not the residual clause of the ACCA.\n\n The Seventh Circuit, the only circuit to grant relief to a § 2255 movant relying\n\non Johnson to challenge USSG §§ 4B1.1, 1.2 of the mandatory Guidelines, has\n\nexpressed the new rule from Johnson as “a right not to have his sentence dictated by\n\n\n\n 7\n The narrowness of that statement of the rule from Johnson has been called\ninto question by Dimaya’s application of the rule to a statutory context outside of the\nACCA—albeit on direct review. But we need not define the precise boundaries of the\nrule today because Mr. Pullen’s attempt to apply Johnson to the mandatory\nGuidelines fails even under his more expansive statement of that rule.\n 20\n\fthe unconstitutionally vague language of the mandatory residual clause.” Cross, 892\n\nF.3d at 294; see Blackstone, 903 F.3d at 1027 (identifying quoted language from\n\nCross as Seventh Circuit’s statement of new right from Johnson). But the Ninth\n\nCircuit has concluded that the Seventh Circuit’s proposed rule is phrased at such a\n\nhigh level of generality that it runs afoul of Supreme Court teachings regarding the\n\nparameters for phrasing a new rule for purposes of a collateral proceeding. See\n\nBlackstone, 903 F.3d at 1026 (“The Supreme Court has repeatedly admonished our\n\ncourt not to advance on its own in determining what rights have been recognized by\n\nthe Supreme Court under AEDPA.”) (citations omitted). We need not consider\n\nwhether the Seventh Circuit’s articulation of the rule is so broad as to restate existing\n\nlaw, rather than announcing a new rule, because Mr. Pullen has espoused a more\n\nnarrow interpretation of the rule from Johnson. We consider Mr. Pullen’s phrasing of\n\nthe new rule now.\n\n2. Mr. Pullen’s Statement of the Rule\n\n Mr. Pullen argues the proper statement of the new rule from Johnson is the\n\nright not to be sentenced under an ordinary-case categorical approach that requires\n\nthe judge to imagine both the conduct necessary to commit the crime and the degree\n\nof risk posed by such conduct. Support for Mr. Pullen’s interpretation of Johnson can\n\nbe drawn from the dissent in Welch and from Dimaya. On the former, as pointed out\n\nabove, the dissent in Welch identified the new rule from Johnson in a manner similar\n\nto the rule stated by Mr. Pullen. See Welch, 136 S. Ct. at 1272 (Thomas, J.,\n\ndissenting) (“Johnson’s new constitutional rule is that a law is unconstitutionally\n\n 21\n\fvague if it ‘requires a court to picture the kind of conduct that the crime involves in\n\n“the ordinary case,” and to judge whether that abstraction presents a serious potential\n\nrisk,’ of some result.” (quoting Johnson, 135 S. Ct. at 2557)). With respect to the\n\nlatter, Dimaya read Johnson as concluding that a residual clause is unconstitutionally\n\nvague if it “‘requires a court to picture the kind of conduct that the crime involves in\n\n“the ordinary case,” and to judge whether that abstraction presents’ some not-well-\n\nspecified-yet-sufficiently-large degree of risk.” 138 S. Ct. at 1216 (quoting Johnson,\n\n135 S. Ct. at 2556–57). Assuming for the sake of argument that Mr. Pullen is correct\n\nregarding the proper phrasing of the new rule from Johnson, three considerations\n\ndefeat his ability to rely on the rule to proceed with a second or successive § 2255\n\nmotion challenging the mandatory Guidelines.\n\n First, central to whether Mr. Pullen can rely on any new rule from Johnson is\n\nwhether application of the rule to the mandatory Guidelines is “dictated by\n\nprecedent” and “apparent to all reasonable jurists” as opposed to “susceptible to\n\ndebate among reasonable minds.” Russo, 902 F.3d at 883 (quotation marks omitted).8\n\nNeither Johnson, Welch, nor Dimaya addressed a challenge to a provision of the\n\nGuidelines, mandatory or advisory. Instead, the only case to address a Johnson-based\n\nchallenge to the Guidelines is Beckles, which concluded the advisory Guidelines were\n\n\n 8\n The Eighth Circuit reached this conclusion based on a trio of Supreme Court\ncases discussing principles governing new rules: Teague v. Lane, 489 U.S. 288, 301\n(1989), Chaidez v. United States, 568 U.S. 342, 347 (2013), and Butler v. MecKellar,\n494 U.S. 407, 415 (1990). See Russo v. United States, 902 F.3d 880, 883 (8th Cir.\n2018).\n\n 22\n\fnot susceptible to a void for vagueness challenge. 137 S. Ct. at 897. And while the\n\nadvisory nature of the Guidelines at issue in Beckles was undoubtedly important to\n\nthe Court’s holding, the concurrence in Beckles indicated that Johnson’s applicability\n\nto the mandatory Guidelines remained an open question. See id. at 903 n.4\n\n(Sotomayor, J. concurring in the judgment) (“The Court’s adherence to the\n\nformalistic distinction between mandatory and advisory rules at least leaves open the\n\nquestion whether defendants sentenced to terms of imprisonment before our decision\n\nin United States v. Booker . . . may mount vagueness attacks on their sentences.”).9 If\n\na question remains “open,” it is not dictated by precedent. See Brown, 868 F.3d at\n\n301 (“[I]f the existence of a right remains an open question as a matter of Supreme\n\nCourt precedent, then the Supreme Court has not ‘recognized’ that right.”); Raybon,\n\n867 F.3d at 630 (“Because it is an open question, it is not a ‘right’ that ‘has been\n\nnewly recognized by the Supreme Court’ let alone one that was ‘made retroactively\n\napplicable to cases on collateral review.’” (quoting 28 U.S.C. § 2255(f)(3))); see also\n\nBlackstone, 903 F.3d at 1026–27 (relying on open nature of question when affirming\n\ndenial of § 2255 relief).\n\n Second, central to why the question remains open is that Johnson involved a\n\nfederal statute, while the Guidelines, even in their mandatory form, were agency-\n\n\n 9\n Even after Dimaya, Justice Sotomayor still believes the question remains\nopen. See Brown v. United States, 139 S. Ct. 14, 15 (2018) (Sotomayor, J., dissenting\nfrom denial of certiorari) (“But for petitioners like Brown, who were sentenced long\nbefore Johnson, this Court has thus far left the validity of their sentences an open\nquestion. The Court’s decision today all but ensures that the question will never be\nanswered.” (citation omitted)).\n 23\n\fcreated rules formed by the U.S. Sentencing Commission to supplement existing,\n\ncongressionally-enacted statutory maximum and minimum sentencing ranges. While\n\nthe Guidelines established a mandatory range, this mandatory range always fell\n\nwithin the statutory minimum and maximum affixed by Congress. See USSG\n\n§ 5G1.1. Thus, regardless of any vagueness in the mandatory Guidelines, the\n\nSupreme Court might conclude the statutory scheme enacted by Congress placed the\n\ndefendant on fair notice of the possible penalties he faced for committing an offense.\n\nCf. Beckles, 137 S. Ct. at 893 (“By specifying ‘the range of penalties that prosecutors\n\nand judges may seek and impose,’ Congress ha[s] ‘fulfilled its duty.’” (quoting\n\nBatchelder, 442 U.S. at 126)); id. at 894 (“All of the notice required is provided by\n\nthe applicable statutory range, which establishes the permissible bounds of the\n\ncourt’s sentencing discretion.”).10\n\n Third, where the Guidelines replaced an open-ended sentencing scheme under\n\nwhich judges could impose any sentence within the statutory range, even a somewhat\n\nvague residual clause in the Guidelines provided more guidance to sentencing judges\n\nthan existed prior to the mandatory Guidelines.11 See In re Griffin, 823 F.3d 1350,\n\n\n 10\n By concluding that the Supreme Court might not strike the residual clause in\nthe mandatory Guidelines as void for vagueness, we do not mean to suggest the Court\nwill reach such a result.\n 11\n Mr. Pullen does not identify any case holding that an open-ended sentencing\nscheme under which a judge could impose any sentence between a properly\nannounced statutory minimum and statutory maximum failed under the Due Process\nClause and the void for vagueness doctrine.\n\n\n 24\n\f1354–55 (11th Cir. 2016) (per curiam) (“Because there is no constitutional right to\n\nsentencing only under guidelines, the limitations the Guidelines place on a judge’s\n\ndiscretion cannot violate a defendant’s right to due process by reason of being vague.\n\n. . . Even vague guidelines cabin discretion more than no guidelines at all.”).12 And,\n\nbecause the Supreme Court has already indicated in Beckles that a defendant received\n\nfair notice of the broad, but specified, range of penalties he faced under the statutory\n\nscheme, 137 S. Ct. at 894–95, and it could reasonably conclude that the sentencing\n\njudge’s discretion was more cabined with the residual clause in USSG § 4B1.2(a)(2)\n\nthan in the absence of any Guidelines, the Court might conclude that the two\n\nconcerns underlying the void for vagueness doctrine are not present in the context of\n\nthe mandatory Guidelines.\n\n\n\n\n 12\n To be sure, the Supreme Court could conclude the language of USSG\n§ 4B1.2, within the context of the mandatory Guidelines, did not satisfy due process\nand void for vagueness considerations. Justice Sotomayor suggested the possibility of\nsuch a result within her concurrence in Beckles:\n\n [A] district court’s reliance on a vague Guideline [such as U.S.S.G. § 4B1.2]\n creates serious risk of “arbitrary enforcement.” . . . It introduces an\n unacceptable degree of arbitrariness into sentencing proceedings to begin by\n applying a rule that is so vague that efforts to interpret it boil down to\n guesswork and intuition.”\n\n137 S. Ct. at 901 (Sotomayor, J., concurring) (citations omitted). The point is that the\nSupreme Court has not yet answered the question. This is fatal to Mr. Pullen’s\nsuccessive § 2255 motion, especially within in the context of a § 2255(h)(2) analysis\nwhere Mr. Pullen must identify a new rule retroactively applicable to his claim for\nrelief.\n\n 25\n\f In accord with the second and third reasons discussed above, Beckles observed\n\nthat the Court has “invalidated two kinds of criminal laws as ‘void for vagueness’:\n\nlaws that define criminal offenses and laws that fix the permissible sentences for\n\ncriminal offenses.” Id. at 892 (first and third emphases added). As to the second type\n\nof laws, “‘statutes fixing sentences’ must specify the range of available sentences\n\nwith ‘sufficient clarity.’” Id. (emphasis added) (first quoting Johnson, 135 S. Ct. at\n\n2557, then quoting United States v. Batchelder, 442 U.S. 114, 123 (1979)). But, the\n\nmandatory Guidelines were not laws or statutes; rather, they merely operated like\n\nstatutes. Thus, while the Supreme Court might one day conclude, by relying on the\n\nactual innocence gateway,13 that the mandatory Guidelines sufficiently took the form\n\nof a law or a statute so as to expose the mandatory Guidelines to a void for vagueness\n\nchallenge, such a conclusion or rule is (1) debatable and (2) essential to Mr. Pullen’s\n\nability to prevail. Accordingly, Mr. Pullen’s § 2255 motion is dependent on a rule not\n\nyet established by the Supreme Court and, consequently, not made retroactively\n\napplicable by the Court.14 This conclusion provides a sufficient basis to preclude Mr.\n\n\n 13\n This circuit does not recognize actual innocence in the sentencing context,\nexcept in capital sentences. See United States v. Denny, 694 F.3d 1185, 1191 (10th\nCir. 2012) (“[A] defendant cannot be actually innocent of a noncapital sentence[.]”\n(internal quotation marks omitted)). But other circuits do permit such arguments, see\nCristin v. Brennan, 281 F.3d 404, 421–22 (3d Cir. 2002) (collecting cases), and the\nSupreme Court has left open the question of whether a prisoner can rely on the actual\ninnocence gateway to challenge a noncapital sentence, see Dretke v. Haley, 541 U.S.\n386, 393–94 (2004).\n 14\n The Court could conclude that the mandatory Guidelines, although not\nstatutes, are subject to a void for vagueness challenge and that they do not satisfy due\n\n 26\n\fPullen from proceeding on his § 2255 motion. See Blackstone, 903 F.3d at 1028;\n\nRusso, 902 F.3d at 883.\n\n3. Summation\n\n Mr. Pullen is not entitled to proceed on his § 2255 motion under his iteration\n\nof the new rule from Johnson. Accordingly, the district court correctly concluded Mr.\n\nPullen failed to actually satisfy the precondition established by § 2255(h)(2) for filing\n\na second or successive § 2255 motion. This conclusion is consistent with the rulings\n\nof six of our seven sibling circuits, which deny § 2255 relief because Johnson either\n\n(1) did not recognize a new right applicable to the mandatory Sentencing Guidelines\n\nfor purposes of the requirement in 28 U.S.C. § 2255(f)(3) or (2) did not create a new\n\nrule applicable to the mandatory Sentencing Guidelines for purposes of meeting the\n\nrequirements in 28 U.S.C. § 2255(h)(2). See Blackstone, 903 F.3d at 1028 (denying\n\n§ 2255 relief under § 2255(f)(3) as Johnson did not recognize right as to mandatory\n\nGuidelines); Russo, 902 F.3d at 883–84 (same); Green, 898 F.3d at 321–33 (same);\n\nBrown, 868 F.3d at 301–02 (same); Raybon, 867 F.3d at 629–31 (same); In re\n\n\n\nprocess concerns because they permitted judges to prescribe sentencing ranges\narbitrarily. See Beckles, 137 S. Ct. at 894-95 (explaining that a vague law which\npermits judges to prescribe sentencing ranges invites arbitrary enforcement). But, to\ndate, the Supreme Court has not announced a new rule retroactively applicable to the\nmandatory Guidelines. Nor, as apparent from the denials of certiorari, has the\nSupreme Court seen fit to take up the issue of Johnson’s impact on the mandatory\nGuidelines. And unless and until it does, Mr. Pullen cannot establish that his\nsuccessive § 2255 motion actually relies on a new rule for purposes of authorization\nunder § 2255(h)(2).\n\n\n 27\n\fGriffin, 823 F.3d at 1354–56 (denying authorization under § 2255(h)(2) because\n\nJohnson did not announce new rule applicable to the mandatory Guidelines).15 But\n\nsee Cross, 892 F.3d at 294.16 It is also consistent with the Supreme Court’s recent\n\ndenials of certiorari on a series of petitions seeking reversal of the aforementioned\n\ncircuit decisions. And while denials of certiorari often do not shed light on the merits\n\n\n 15\n Although the Fourth, Sixth and Eleventh Circuits reached their decisions\nbefore Dimaya, the Sixth and Eleventh Circuits continue to rely respectively upon\nRaybon and Griffin after Dimaya. See Robinson v. United States, 736 F. App’x 599,\n599–600 (6th Cir. 2018) (holding Raybon had not been overruled by a Supreme Court\ndecision and remained law of the circuit); Foxx v. United States, 736 F. App’x 253,\n254 (11th Cir. 2018) (“[W]e cannot deviate from In re Griffin given the current state\nof the law, and this forecloses Foxx’s appeal.”); Lewis v. United States, 733 F. App’x\n501, 503 (11th Cir. 2018) (concluding In re Griffin “remains binding”). It does not\nappear the Fourth Circuit has revisited the issue since Dimaya.\n Separately, we observe that while In re Griffin involved the denial of\nauthorization for failing to make a prima facie showing under § 2255(h)(2) and 28\nU.S.C. § 2244(b)(3), 823 F.3d 1350, 1351, 1354–56 (11th Cir. 2016) (per curiam),\nMr. Pullen already passed through the prima facie gate when we granted\nauthorization. Thus, rather than relying on § 2244(b)(3) when dismissing Mr.\nPullen’s § 2255 motion, the district court correctly relied on § 2244(b)(4) to conclude\nMr. Pullen did not satisfy the requirements set forth by § 2255(h)(2).\n 16\n Mr. Pullen argues the First Circuit, in Moore v. United States, 871 F.3d 72\n(1st Cir. 2017), reached the same result as the Seventh Circuit. Moore, however,\ninvolved a preliminary, or prima facie, determination under 28 U.S.C. § 2244(b)(3)\nthat a § 2255 movant could rely on Johnson to challenge the mandatory Guidelines\nand not the conclusion that the second or successive § 2255 motion was actually\npremised on a new rule of constitutional law made retroactive by the Supreme Court\nfor purposes of the 28 U.S.C. § 2244(b)(4) analysis. See Moore, 871 F.3d at 80\n(“Having explained the focused yet tentative nature of the examination called for in\nevaluating a request to file a second or successive § 2255 motion, we turn next to\nMoore’s motion.”). Thus, even if other language in Moore suggests the panel of the\nFirst Circuit would have reached the same conclusion had it been conducting a\n§ 2244(b)(4) analysis, see id. at 85, Moore does not establish any binding precedent\nas to the § 2244(b)(4) question.\n\n\n 28\n\fof an issue, see United States v. Carver, 260 U.S. 482, 490 (1923), these denials of\n\ncertiorari (1) were over a two justice dissent, which expressly states the question is\n\nopen and not likely to ever be resolved; and (2) the individual defendants are now\n\nprecluded from filing new and timely § 2255 motions based on Johnson should the\n\nSupreme Court later adopt the position advanced in their certiorari petitions.17\n\n IV. CONCLUSION\n\n We conclude Johnson did not create a new rule of constitutional law applicable to\n\nthe mandatory Guidelines because (1) Beckles suggests the void for vagueness doctrine’s\n\napplicability to the mandatory Guidelines remains an open question; (2) the Guidelines,\n\neven in their mandatory form, were not statutes; and (3) even a vague provision of the\n\nGuidelines provided more guidance to defendants and sentencing judges than did the\n\ncongressionally-enacted statutory minimum and maximum sentences that provided\n\ndefendants sufficient due process. Although the Supreme Court might reject all of these\n\nconsiderations and invalidate the residual clause of the mandatory Guidelines, it has not\n\nyet done so. Because Johnson did not create a new rule of constitutional law applicable to\n\n\n\n\n 17\n In concluding that, regardless of how the new rule from Johnson is phrased,\nJohnson does not create a new rule of constitutional law relative to the mandatory\nGuidelines, we find it unnecessary to decide whether Greer’s statement of the rule\nfrom Johnson is too narrow in light of Dimaya. Rather, it is clear Greer’s holding,\nthat Johnson does not create a new rule of constitutional law applicable to the\nmandatory Guidelines, remains good law.\n\n\n 29\n\fthe mandatory Guidelines, the district court properly denied relief and dismissed Mr.\n\nPullen’s § 2255 motion pursuant to § 2255(h)(2). Accordingly, we AFFIRM.18\n\n\n\n\n 18\n We DENY Mr. Pullen’s motion to file a pro se opening brief and his motion\nto file a pro se supplemental brief.\n 30\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Bobby G. PULLEN, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-01-29\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS January 29, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n UNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n No. 17-3194\\n v.\\n\\n BOBBY G. PULLEN,\\n\\n Defendant - Appellant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Kansas\\n (D.C. Nos. 5:16-CV-04067-JAR and 5:98-CR-40080-JAR-1)\\n _________________________________\\n\\nDaniel T. Hansmeier, Appellate Chief, Kansas Federal Public Defender (Melody\\nBrannon, Federal Public Defender, and Kirk Redmond, First Assistant Federal Public\\nDefender), Kansas City, Kansas, for Defendant - Appellant.\\n\\nJared S. Maag, Assistant United States Attorney (Thomas E. Beall, former United States\\nAttorney; Stephen R. McAllister, United States Attorney; and James A. Brown, Assistant\\nUnited States Attorney, with him on the briefs), Topeka, Kansas, for Plaintiff - Appellee.\\n _________________________________\\n\\nBefore McHUGH, MORITZ, and EID, Circuit Judges.\\n _________________________________\\n\\nMcHUGH, Circuit Judge.\\n _________________________________\\n\\n\\n The district court sentenced Bobby G. Pullen as a career offender pursuant to\\n\\nUnited States Sentencing Guidelines Manual (“USSG”) § 4B1.1 at a time when the\\n\\fSentencing Guidelines were mandatory. In 2015, the Supreme Court decided Johnson v.\\n\\nUnited States, 135 S. Ct. 2551 (2015), holding the residual clause of 18 U.S.C.\\n\\n§ 924(e)(2)(B)(ii) is unconstitutionally vague. As the residual clause of § 924(e)(2)(B)(ii)\\n\\nis identical in wording to the residual clause of USSG § 4B1.2 (a definitional provision\\n\\nfor USSG § 4B1.1), Mr. Pullen, relying on Johnson, moved for authorization to file a\\n\\nsecond or successive 28 U.S.C. § 2255 motion. This court determined Mr. Pullen made a\\n\\nprima facie showing that Johnson created a retroactive, new rule of constitutional law\\n\\napplicable to the mandatory Guidelines. The district court, however, concluded Johnson\\n\\ndid not actually create a new rule applicable to the mandatory Guidelines and dismissed\\n\\nMr. Pullen’s § 2255 motion pursuant to 28 U.S.C. § 2255(h)(2), a provision governing\\n\\nauthorization to file a second or successive § 2255 motion. The district court did,\\n\\nhowever, grant Mr. Pullen a certificate of appealability (“COA”).\\n\\n On appeal, Mr. Pullen argues the district court procedurally erred when it relied on\\n\\n§ 2255(h)(2) as the basis for dismissing his § 2255 motion and substantively erred when\\n\\nit determined Johnson did not create a new rule applicable to the mandatory Guidelines.\\n\\nAs to Mr. Pullen’s procedural challenge, our recent decision in United States v. Murphy,\\n\\n887 F.3d 1064 (10th Cir.), cert. denied, 2018 WL 3462559 (Oct. 29, 2018), forecloses his\\n\\nargument. With respect to Mr. Pullen’s substantive challenge, the Supreme Court has\\n\\nnever recognized a void for vagueness challenge to the Guidelines and so Johnson neither\\n\\ncreates a new rule applicable to the Guidelines nor dictates that any provision of the\\n\\n\\n\\n\\n 2\\n\\fGuidelines is subject to a void for vagueness challenge. Accordingly, we affirm the\\n\\ndistrict court’s judgment.\\n\\n I. BACKGROUND\\n\\n In 1999, a jury convicted Mr. Pullen of one count of possession with intent to\\n\\ndistribute 100 kilograms or more of marihuana, or aiding and abetting the same, in\\n\\nviolation of 21 U.S.C. § 841(a)(1), (b)(1)(B), 18 U.S.C. § 2. At sentencing, the district\\n\\ncourt established a total offense level of thirty-four and a criminal history category of VI.\\n\\nThe offense level and criminal history category resulted from application of the career\\n\\noffender provision of USSG § 4B1.1 (1998). Application of the career offender provision\\n\\nrested in part on a prior Missouri conviction for escape. Under the offense level and\\n\\ncriminal history category compelled by the career offender provision, the presentence\\n\\ninvestigation report set Mr. Pullen’s Guidelines range at 262 to 327 months’\\n\\nimprisonment. The district court sentenced Mr. Pullen to 262 months’ imprisonment.\\n\\nAbsent designation as a career offender, Mr. Pullen’s Guidelines range would have been\\n\\n92 to 115 months’ imprisonment.\\n\\n In 2006, Mr. Pullen filed his first motion under 28 U.S.C. § 2255, which the\\n\\ndistrict court dismissed as untimely. United States v. Pullen, No. 98–40080–JAR,\\n\\n2006 WL 1133232, at *1 (D. Kan. Apr. 21, 2006). In 2015, the Supreme Court\\n\\ndecided Johnson, relying on the void for vagueness doctrine to invalidate the residual\\n\\nclause of 18 U.S.C. § 924(e)(2)(B)(ii). See 135 S. Ct. at 2563. This residual clause is\\n\\npart of the Armed Career Criminal Act (“ACCA”), which enhances the statutory\\n\\nmandatory minimum for certain defendants who have three or more previous\\n\\n 3\\n\\fconvictions “for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1).\\n\\nSection 924(e)(2)(B)(ii) defines “violent felony” to include an offense that “is\\n\\nburglary, arson, or extortion, involves use of explosives, or otherwise involves\\n\\nconduct that presents a serious potential risk of physical injury to another.”\\n\\n(emphasis added). The clause emphasized above is the residual clause invalidated in\\n\\nJohnson. Importantly, the residual clause of § 924(e)(2)(B)(ii) is identical to the\\n\\nresidual clause in USSG § 4B1.2, which defined “crime of violence” for purposes of\\n\\nthe career offender guideline as an offense that “is burglary of a dwelling, arson, or\\n\\nextortion, involves use of explosives, or otherwise involves conduct that presents a\\n\\nserious potential risk of physical injury to another.” USSG 4B1.2(a)(2) (emphasis\\n\\nadded).\\n\\n Within one year of the decision in Johnson, Mr. Pullen, relying on 28 U.S.C.\\n\\n§ 2255(h)(2) and arguing Johnson created a new rule of constitutional law applicable\\n\\nto the mandatory Guidelines, filed a motion in this court for authorization to file a\\n\\nsecond or successive § 2255 motion. We granted the motion for authorization and\\n\\nMr. Pullen filed his § 2255 motion in district court. The Government filed a response\\n\\nin which it conceded Mr. Pullen’s Missouri escape conviction qualified as a “crime\\n\\nof violence” only under the residual clause of USSG § 4B1.2(a)(2) but argued, in\\n\\npart, that (1) Johnson did not create a new rule applicable to the mandatory\\n\\nGuidelines; (2) a rule allowing void for vagueness challenges to the Guidelines\\n\\nwould be a new rule that the Supreme Court had not yet recognized; and (3) Mr.\\n\\nPullen’s motion was, therefore, untimely for purposes of 28 U.S.C. § 2255(f).\\n\\n 4\\n\\f The district court focused its analysis on § 2255(h)(2)’s requirement that Mr.\\n\\nPullen’s motion be based on “a new rule of constitutional law, made retroactive to cases\\n\\non collateral review by the Supreme Court.” See ROA at 184 (quoting § 2255(h)(2)). The\\n\\ndistrict court concluded Mr. Pullen’s motion was untimely and did not satisfy\\n\\n§ 2255(h)(2) because relief was premised on the void for vagueness doctrine applying to\\n\\nthe Guidelines but neither Johnson nor any other Supreme Court case has recognized a\\n\\nvoid for vagueness challenge to the Guidelines. Thus, the district court, relying on\\n\\n§ 2255(h)(2), dismissed Mr. Pullen’s motion.\\n\\n The district court, however, granted Mr. Pullen a COA. In pertinent part, the COA\\n\\nreads: “Here, the Court concludes that reasonable jurists could debate whether the Court\\n\\nwas correct in its ruling. The Court thus grants a COA on the issue of whether Mr.\\n\\nPullen’s motion falls within the scope of 28 U.S.C. § 2255(h)(2).” ROA at 187. In his\\n\\nopening brief, Mr. Pullen focuses on the § 2255(h)(2) nature of the dismissal, arguing this\\n\\nprovision is directed at the circuit court’s authority to grant a prisoner authorization to file\\n\\na second or successive § 2255 motion and, once a circuit court grants authorization, the\\n\\ndistrict court may not dismiss the motion pursuant to § 2255(h)(2).1 In its response brief,\\n\\nthe Government argues a grant of authorization by a circuit court only preliminarily\\n\\ncertifies that the movant satisfied the preconditions for a second or successive § 2255\\n\\n\\n\\n 1\\n Mr. Pullen moved for leave to file a pro se opening brief. Because Mr. Pullen\\nis represented by counsel, we deny his motion. See United States v. McDermott, 64\\nF.3d 1448, 1450 n.1 (10th Cir. 1995) (declining to consider issues raised in pro se\\nbrief based on “policy of addressing on direct appeal only those issues raised by\\ncounsel”).\\n 5\\n\\fmotion and that the district court has a secondary gatekeeping role to assure the motion\\n\\ndoes, in fact, satisfy § 2255(h)(2). The Government further argues the district court\\n\\ncorrectly concluded Johnson did not create a retroactive, new rule applicable to the\\n\\nmandatory Guidelines.\\n\\n After briefing concluded, several key developments occurred in the law\\n\\nsurrounding Johnson. First, the Supreme Court issued its decision in Sessions v. Dimaya,\\n\\nholding application of Johnson resulted in the conclusion that 18 U.S.C. § 16(b)—which\\n\\nis similarly, but not identically, worded to the residual clause of § 924(e)(2)(B)(ii)—was\\n\\nunconstitutionally vague. 138 S. Ct. 1204 (2018). Second, the Supreme Court denied\\n\\ncertiorari petitions in several cases where circuit courts rejected § 2255 Johnson-based\\n\\nchallenges to the residual clause in USSG § 4B1.2. See, e.g., Raybon v. United States,\\n\\n138 S. Ct. 2661 (2018); Lester v. United States, 138 S. Ct. 2030 (2018). Third, several\\n\\nother circuit courts addressed whether Johnson created a retroactive, new rule applicable\\n\\nto the residual clause of USSG § 4B1.2. See United States v. Blackstone, 903 F.3d 1020,\\n\\n1025–28 (9th Cir. 2018) (holding Supreme Court has yet to announce rule that mandatory\\n\\nGuidelines are susceptible to void for vagueness challenge); Russo v. United States, 902\\n\\nF.3d 880, 882–84 (8th Cir. 2018) (denying § 2255 relief and holding prisoner was not\\n\\nasserting a right based on Johnson because reasonable minds could debate whether\\n\\nJohnson announced a new rule of constitutional law applicable to the mandatory\\n\\nGuidelines); United States v. Green, 898 F.3d 315, 319–23 (3d Cir. 2018) (holding\\n\\n§ 2255 motion untimely because Beckles v. United States, 137 S. Ct. 886 (2017), favors\\n\\nconclusion Johnson did not create new rule applicable to mandatory Guidelines and that\\n\\n 6\\n\\fissue remains open); Cross v. United States, 892 F.3d 288, 299–306 (7th Cir. 2018)\\n\\n(holding Johnson created new rule applicable to all vague, mandatory residual clauses\\n\\nthat enhance punishment such that § 2255 relief from sentence imposed under mandatory\\n\\nGuidelines scheme was proper).\\n\\n In the midst of these developments, we ordered the parties to submit\\n\\nsimultaneous supplemental briefs. In his supplemental brief, Mr. Pullen argues\\n\\nDimaya teaches us that Johnson created a new rule that applies beyond 18 U.S.C.\\n\\n§ 924(e)(2)(B)(ii).2 And Mr. Pullen articulates the new rule from Johnson as a\\n\\n due process right not to have a statutory penalty range fixed by a\\n provision that defines a prior conviction as one involving “conduct that\\n presents a serious potential risk of physical injury to another,” and that\\n uses an ordinary-case categorical approach to measure whether the\\n conviction is sufficiently risky to count under the provision.\\n\\nPullen Supp. Br. at 5–6 (not identifying source of quotation). The Government argues\\n\\nneither Dimaya nor Johnson addressed the constitutionality of a Guidelines provision\\n\\nor whether the void for vagueness doctrine applies to the Guidelines. Rather, the\\n\\nGovernment argues, Beckles provides the best guidance on whether Johnson created\\n\\na new rule relative to the mandatory Guidelines. The majority opinion in Beckles\\n\\nrejected a Johnson-based challenge to the advisory Guidelines and Justice\\n\\nSotomayor, in a concurrence, indicated that Johnson’s applicability to the mandatory\\n\\nGuidelines “remains an open question.” Gov. Supp. Br. at 5. The Government\\n\\n\\n 2\\n Out of concern that his counsel might not have filed a supplemental brief,\\nMr. Pullen moved to file a pro se supplemental brief. As Mr. Pullen is represented by\\ncounsel and his counsel did file a supplemental brief, we deny Mr. Pullen’s motion.\\nSee McDermott, 64 F.3d at 1150 n.1.\\n 7\\n\\ftheorizes that if the question remains open, Johnson does not create a new rule\\n\\napplicable to the mandatory Guidelines because, if a question is “expressly left open,\\n\\nthen the right, by definition, has not been recognized.” Id. at 5–6 (quoting United\\n\\nStates v. Brown, 868 F.3d 297, 299 n.1 (4th Cir. 2017), cert. denied, 139 S. Ct. 14\\n\\n(2018)).\\n\\n Finally, subsequent to oral argument, the Supreme Court, over a two justice\\n\\ndissent, denied certiorari petitions in a second set of cases where circuit courts denied\\n\\n§ 2255 motions raising Johnson-based challenges to the residual clause of USSG\\n\\n§ 4B1.2, as applied when the Guidelines were mandatory. Brown v. United States,\\n\\n139 S. Ct. 14 (2018); see Gipson v. United States, 2018 WL 1993703 (Oct. 15, 2018);\\n\\nLewis v. United States, 2018 WL 3094227 (Oct. 15, 2018); Greer v. United States,\\n\\n2018 WL 2087987 (Oct. 15, 2018); Wilson v. United States, 2018 WL 2064772 (Oct.\\n\\n15, 2018); Molette v. United States, 2018 WL 1640168 (Oct. 15, 2018); Homrich v.\\n\\nUnited States, 2018 WL 2364812 (Oct. 15, 2018); Chubb v. United States, 2018 WL\\n\\n3024068 (Oct. 15, 2018); Smith v. United States, 2018 WL 3024136 (Oct. 15, 2018);\\n\\nBuckner v. United States, 2018 WL 3024166 (Oct. 15, 2018);3 see also Robinson v.\\n\\nUnited States, 2019 WL 113550 (Jan. 7, 2019); Garrett v. United States, 2018 WL\\n\\n\\n 3\\n Footnote 1 of the dissent from the denial of certiorari in Brown v. United\\nStates indicates that the dissent also applies to the other nine orders denying\\ncertiorari that issued on October 15, 2018. 139 S. Ct. 14, 14 n.1 (2018) (Sotomayor,\\nJ., dissenting from denial of certiorari). Where Justice Ginsburg joined the dissent in\\nBrown in full and without reservation, we interpret footnote 1 as indicating that\\nJustice Ginsburg dissented from the other nine denials of certiorari issued on October\\n15, 2018, even though the orders in those denials do not specifically identify Justice\\nGinsburg as dissenting.\\n 8\\n\\f3660076 (Dec. 3, 2018); Bowens v. United States, 2018 WL 5113456 (Nov. 19,\\n\\n2018); Callins v. United States, 2018 WL 4932460 (Nov. 13, 2018).\\n\\n II. STANDARD OF REVIEW\\n\\n “Where, as here, the district court does not hold an evidentiary hearing, but\\n\\nrather denies the motion as a matter of law . . . our review is strictly de novo.” United\\n\\nStates v. Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015) (quotation marks omitted).\\n\\nFurther, “[w]e are not bound by the district court’s reasoning and may affirm on any\\n\\nground adequately supported by the record.” United States v. Greer, 881 F.3d 1241,\\n\\n1244 (10th Cir. 2018), (internal quotation marks omitted) cert. denied 2018 WL\\n\\n2087987; see Grossman v. Bruce, 447 F.3d 801, 805 n.2 (10th Cir. 2006) (“[W]e are\\n\\nfree to affirm [the denial of 28 U.S.C. § 2241 relief] on any ground for which there is\\n\\na sufficient record to permit conclusions of law.”).\\n\\n III. DISCUSSION\\n\\n A. Threshold Requirement for Second or Successive § 2255 Motion\\n\\n Although prisoners who have not filed a prior § 2255 motion may file such a\\n\\nmotion directly in the district court, a prisoner who filed a prior § 2255 motion must\\n\\nobtain authorization from a circuit court judge prior to filing the motion in district\\n\\ncourt. See 28 U.S.C. § 2244(a); see also id. § 2244(b)(3)(A) (“Before a second or\\n\\nsuccessive application permitted by this section is filed in the district court, the\\n\\napplicant shall move in the appropriate court of appeals for an order authorizing the\\n\\ndistrict court to consider the application.”). Section 2255(h) of Title 28 sets out the\\n\\nrequirements for authorization and states, in pertinent part:\\n\\n 9\\n\\f A second or successive motion must be certified as provided in section\\n 2244 by a panel of the appropriate court of appeals to contain—\\n ...\\n (2) a new rule of constitutional law, made retroactive to cases on\\n collateral review by the Supreme Court, that was previously\\n unavailable.\\n\\nTo obtain authorization to file a second or successive § 2255 motion, a movant\\n\\nrelying on a new rule of constitutional law must make a prima facie showing to the\\n\\ncircuit court that he satisfies the § 2255(h)(2) requirements. 28 U.S.C.\\n\\n§ 2244(b)(3)(C).\\n\\n B. Secondary Requirement for Second or Successive § 2255 Motion\\n\\n Having concluded that Mr. Pullen made a prima facie showing to the circuit court\\n\\nthat he satisfies the § 2255(h)(2) requirements, we next consider whether the district\\n\\ncourt possessed the authority to deny Mr. Pullen relief and dismiss his § 2255 motion\\n\\npursuant to § 2255(h)(2) after the circuit court certified his prima facie compliance.\\n\\nOur recent decision in Murphy controls our analysis.\\n\\n As discussed, “[u]nder § 2255(h)(2), a second or successive [§ 2255] motion\\n\\nmust be certified—as provided in 28 U.S.C. § 2244—by a court of appeals to contain\\n\\na previously unavailable new rule of constitutional law that the Supreme Court has\\n\\nmade retroactively applicable to cases on collateral review.” Murphy, 887 F.3d at\\n\\n1067. In turn, § 2244(b)(3) instructs that “to receive certification, a motion need only\\n\\nmake a prima facie showing that it satisfies § 2255’s criteria.” Id. (emphasis added).\\n\\nBecause § 2244(b)(3) requires only a prima facie showing for certification by the\\n\\ncourt of appeals, certification amounts to only a “preliminary” determination that the\\n\\n\\n 10\\n\\fsecond or successive § 2255 motion contains a claim based on a new rule of\\n\\nconstitutional law made retroactive on collateral review by the Supreme Court. Id.\\n\\nThe “preliminary” nature of this determination means the movant must pass through\\n\\na second procedural gate once in district court: “[P]ursuant to § 2244(b)(4), once the\\n\\ncourt of appeals grants authorization, the district court must determine whether the\\n\\npetition does, in fact, satisfy the requirements for filing a second or successive\\n\\nmotion before the merits of the motion can be considered.” Id. (internal quotation\\n\\nmarks omitted). In summation, the two procedural gates a prisoner must pass through\\n\\nbefore obtaining review of the merits of a second or successive § 2255 motion are:\\n\\n (1) a prima facie showing to the court of appeals that the motion\\n satisfies the requirements of § 2255(h), defined as “a sufficient\\n showing of possible merit to warrant a fuller exploration by the\\n district court” and\\n (2) a determination by the district court that the petition does, in fact,\\n satisfy those requirements.\\n\\nId. at 1068 (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997)).\\n\\n In accord with this two-gate approach, the district court was required to\\n\\nanalyze whether Mr. Pullen’s § 2255 motion actually relied on “a new rule of\\n\\nconstitutional law, made retroactive to cases on collateral review by the Supreme\\n\\nCourt” as required by § 2255(h)(2) and § 2244(b)(4). Concluding that Mr. Pullen’s\\n\\n§ 2255 motion did not actually rely on a new rule of constitutional law applicable to\\n\\nthe mandatory Guidelines, the district court relied on § 2255(h)(2) to dismiss the\\n\\nmotion.\\n\\n\\n\\n\\n 11\\n\\f With these requirements in mind, we discuss the history of the Sentencing\\n\\nGuidelines and of Johnson and its progeny before turning to the issue of whether the\\n\\ndistrict court correctly determined that Mr. Pullen cannot actually satisfy the\\n\\nrequirements of § 2255(h)(2). See 28 U.S.C. § 2244(b)(4). That is, whether his\\n\\nmotion relies on a new rule of constitutional law already decided and deemed\\n\\nretroactively applicable by the Supreme Court.\\n\\n C. Legal Background\\n\\n1. History of the Guidelines\\n\\n In 1984, Congress authorized the United States Sentencing Commission to\\n\\npromulgate the Sentencing Guidelines. Mistretta v. United States, 488 U.S. 361, 362\\n\\n(1989). Prior to the adoption of the Guidelines, the often expansive statutory\\n\\nminimum and maximum penalties for an offense served as the only constraint on a\\n\\nfederal judge’s discretion at sentencing. Id. at 364 (describing the pre-Guidelines\\n\\nsentencing scheme as one where “Congress delegated almost unfettered discretion to\\n\\nthe sentencing judge to determine what the sentence should be within the customarily\\n\\nwide range so selected”). One of the primary purposes behind the creation of the\\n\\nGuidelines was to “promote uniformity and proportionality in sentencing” across the\\n\\ncountry. United States v. Jackson, 921 F.2d 985, 988 (10th Cir. Dec. 17, 1990) (en\\n\\nbanc). And in passing the Sentencing Reform Act of 1984, Congress intentionally\\n\\n“settl[ed] on a mandatory-guideline system,” rather than an advisory system.\\n\\nMistretta, 488 U.S. at 367.\\n\\n\\n\\n 12\\n\\f Codifying the generally mandatory nature of the Guidelines, Congress enacted\\n\\n18 U.S.C. § 3553(b)(1), which states, in pertinent part:\\n\\n Except as provided in paragraph (2), the court shall impose a sentence\\n of the kind, and within the range, [produced by the Guidelines] unless\\n the court finds that there exists an aggravating or mitigating\\n circumstance of a kind, or to a degree, not adequately taken into\\n consideration by the Sentencing Commission in formulating the\\n guidelines that should result in a sentence different from that described.\\n In determining whether a circumstance was adequately taken into\\n consideration, the court shall consider only the sentencing guidelines,\\n policy statements, and official commentary of the Sentencing\\n Commission.\\n\\n(emphasis added). In 2005, the Supreme Court struck down the above-quoted\\n\\nstatutory provision, concluding the Sixth Amendment precluded a sentencing judge\\n\\nfrom finding facts that effectively increased a defendant’s punishment where those\\n\\nfacts had not been found by a jury or admitted by the defendant as part of a guilty\\n\\nplea. United States v. Booker, 543 U.S. 220, 244 (2005).4 In reaching this conclusion,\\n\\nthe Court held the Guidelines acted like a statute because a sentencing judge’s ability\\n\\nto depart from the Guidelines range was so strictly limited that the Guidelines range\\n\\ndrove a defendant’s sentence in the vast majority of cases. Id. at 234. To solve the\\n\\nconstitutional problem with a mandatory-Guidelines scheme, the Supreme Court\\n\\nsevered the portion of the Sentencing Reform Act of 1984 that made the Guidelines\\n\\n\\n\\n\\n 4\\n Despite Booker’s statement about judicial factfinding at sentencing violating\\nthe Sixth Amendment, an exception to this general prohibition exists where the\\ndistrict court makes factual findings regarding a defendant’s prior criminal history.\\nSee Apprendi v. New Jersey, 530 U.S. 466, 496 (2000).\\n 13\\n\\fmandatory, transforming the Guidelines into their present-day, advisory form. Id. at\\n\\n265; see also id. at 245–60.\\n\\n2. Johnson and its Progeny\\n\\n In 2015, the Supreme Court addressed the constitutionality of 18 U.S.C.\\n\\n§ 924(e)(2)(B). Section 924(e)(2)(B) defined “violent felony” as\\n\\n any crime punishable by imprisonment for a term exceeding one year\\n . . . that—\\n (i) has as an element the use, attempted use, or threatened use of\\n physical force against the person of another; or\\n (ii) is burglary, arson, or extortion, involves use of explosives, or\\n otherwise involves conduct that presents a serious potential\\n risk of physical injury to another\\n\\n(emphasis added). In Johnson, the Court concluded the emphasized language, known\\n\\nas the residual clause, was void for vagueness because “the indeterminacy of the\\n\\nwide-ranging inquiry required by the residual clause both denies fair notice to\\n\\ndefendants and invites arbitrary enforcement by judges.” 135 S. Ct. at 2557; see id. at\\n\\n2556 (identifying “fail[ure] to give ordinary people fair notice of the conduct it\\n\\npunishes” and being “so standardless that it invites arbitrary enforcement” as two\\n\\nbases for finding statute unconstitutionally vague). Johnson, however, limited its\\n\\nholding to the residual clause of § 924(e)(2)(B)(ii). See id. at 2563 (“Today’s\\n\\ndecision does not call into question application of the [ACCA] to the four enumerated\\n\\noffenses, or the remainder of the [ACCA’s] definition of a violent felony.”); see also\\n\\nGreer, 881 F.3d at 1248 (“[T]he only right recognized by the Supreme Court in\\n\\nJohnson was a defendant’s right not to have his sentence increased under the residual\\n\\nclause of the ACCA.”).\\n\\n 14\\n\\f In the aftermath of Johnson, courts were flooded with challenges, both on\\n\\ndirect appeal and under § 2255, to convictions or sentences supported by\\n\\n§ 924(e)(2)(B)(ii) or other provisions resembling § 924(e)(2)(B)(ii). A trio of\\n\\nSupreme Court cases shape the state of the law post-Johnson. First, in Welch v.\\n\\nUnited States, the Court held Johnson announced a new rule of constitutional law\\n\\nthat applied retroactively to cases on collateral review. 136 S. Ct. 1257, 1264–65\\n\\n(2016). Although Welch never explicitly states the rule from Johnson, the majority\\n\\nopinion suggests the rule was limited to the ACCA. See id. at 1265 (“By striking\\n\\ndown the residual clause as void for vagueness, Johnson changed the substantive\\n\\nreach of the Armed Career Criminal Act, altering the range of conduct or the class of\\n\\npersons that the [Act] punishes . . . . The residual clause is invalid under Johnson, so\\n\\nit can no longer mandate or authorize any sentence. Johnson establishes . . . that even\\n\\nthe use of impeccable factfinding procedures could not legitimate a sentence based\\n\\non that clause.” (internal quotation marks omitted)). But see id. at 1272 (Thomas, J.,\\n\\ndissenting) (“Johnson’s new constitutional rule is that a law is unconstitutionally\\n\\nvague if it ‘requires a court to picture the kind of conduct that the crime involves in\\n\\n“the ordinary case,” and to judge whether that abstraction presents a serious potential\\n\\nrisk,’ of some result.” (quoting Johnson, 135 S. Ct. at 2557)).\\n\\n Second, in Beckles, the Court addressed whether the residual clause of USSG\\n\\n§ 4B1.2 of the advisory Guidelines was susceptible to a void for vagueness challenge\\n\\n\\n\\n\\n 15\\n\\fsimilar to the challenge that prevailed in Johnson.5 See 137 S. Ct. at 890. Because the\\n\\nresidual clause of USSG § 4B1.2(a)(2) was identical to the language held void for\\n\\nvagueness in Johnson, several circuit courts, including this court, concluded the rule\\n\\nfrom Johnson necessitated the invalidation of the residual clause in § 4B1.2(a)(2)\\n\\nwithin the context of the advisory Guidelines. See United States v. Pawlak, 822 F.3d\\n\\n902 (6th Cir. 2016); United States v. Hurlburt, 835 F.3d 715 (7th Cir. 2016) (en\\n\\nbanc); United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015). But see United States\\n\\nv. Matchett, 802 F.3d 1185 (11th Cir. 2015) (rejecting void for vagueness challenge\\n\\nto advisory Guidelines).\\n\\n In Beckles, the Supreme Court rejected the position that the advisory\\n\\nGuidelines were susceptible to the rule from Johnson or a void for vagueness\\n\\n\\n\\n 5\\n Recall that USSG § 4B1.2 defined “crime of violence” as:\\n\\n [A]ny offense under federal or state law, punishable by imprisonment\\n for a term exceeding one year, that—\\n (1) has as an element the use, attempted use, or threatened use of\\n physical force against the person of another, or\\n (2) is burglary of a dwelling, arson, or extortion, involves use of\\n explosives, or otherwise involves conduct that presents a\\n serious potential risk of physical injury to another.\\n\\nUSSG § 4B1.2(a) (1998–2015) (emphasis added). The emphasized language is the\\nresidual clause that was at issue in Beckles v. United States, 137 S. Ct. 886 (2017),\\nand is at issue in this case. In 2016, the Sentencing Commission passed an\\namendment to the Guidelines adding several enumerated offenses to subsection (2)\\nand removing the residual clause of the subsection. USSG Supp. to App. C., Amend\\n798 at 131 (Nov. 1, 2016) (“Amendment 798”). Amendment 798, however, has no\\nbearing on Mr. Pullen’s case as the Amendment does not apply retroactively. See\\nUSSG § 1B1.10(d) (listing amendments that apply retroactively).\\n\\n 16\\n\\fchallenge. 137 S. Ct. at 894–95. In so holding, the Court observed it had “invalidated\\n\\ntwo kinds of criminal laws as ‘void for vagueness’: laws that define criminal offenses\\n\\nand laws that fix the permissible sentences for criminal offenses.” Id. at 892 (first and\\n\\nthird emphases added). The Beckles Court further observed that “‘statutes fixing\\n\\nsentences’ must specify the range of available sentences with ‘sufficient clarity,’” id.\\n\\n(emphasis added) (first quoting Johnson, 135 S. Ct. at 2557, then quoting United\\n\\nStates v. Batchelder, 442 U.S. 114, 123 (1979)), and that “[b]y specifying ‘the range\\n\\nof penalties that prosecutors and judges may seek and impose,’ Congress ha[s]\\n\\n‘fulfilled its duty’” to craft a law that comports with due process, id. at 893 (quoting\\n\\nBatchelder, 442 U.S. at 126). The Court then distinguished the advisory Guidelines,\\n\\nwhich “do not fix the permissible range of sentences,” from the “statute” at issue in\\n\\nJohnson, which did “fix[] permissible sentences.” Id. at 892. From this, the Court\\n\\nconcluded “[t]he advisory Guidelines . . . do not implicate the twin concerns\\n\\nunderlying [the] vagueness doctrine—providing notice and preventing arbitrary\\n\\nenforcement.” Id. at 894. As to the first of these concerns, “[a]ll of the notice\\n\\nrequired is provided by the applicable statutory range, which establishes the\\n\\npermissible bounds of the court’s sentencing discretion.” Id. Along those lines, the\\n\\nCourt stated, “[t]he Guidelines . . . do not regulate the public by prohibiting any\\n\\nconduct or by ‘establishing minimum and maximum penalties for any crime.’” Id. at\\n\\n895 (quoting Mistretta, 488 U.S. at 396).\\n\\n The majority opinion in Beckles, however, indicated that the second concern of\\n\\nthe void for vagueness doctrine—preventing arbitrary enforcement—was ameliorated\\n\\n 17\\n\\fby the advisory nature of the Guidelines post-Booker and the sentencing judge’s\\n\\ndiscretion to impose a sentence anywhere within the statutory range. Id. The\\n\\ndistinction between the discretion afforded sentencing judges under the advisory\\n\\nGuidelines, compared to the mandatory Guidelines, caught the attention of Justice\\n\\nSotomayor, whose concurrence stated:\\n\\n The Court’s adherence to the formalistic distinction between mandatory\\n and advisory rules at least leaves open the question whether defendants\\n sentenced to terms of imprisonment before our decision in United States\\n v. Booker, 543 U.S. 220 (2005)—that is, during the period in which the\\n Guidelines did “fix the permissible range of sentences”—may mount\\n vagueness attacks on their sentences. That question is not presented by\\n this case and I, like the majority, take no position on its appropriate\\n resolution.\\n\\nId. at 903 n.4 (Sotomayor, J. concurring in the judgment) (citations omitted).\\n\\n Third, in Dimaya, the Supreme Court relied on the void for vagueness doctrine\\n\\nto strike down 18 U.S.C. § 16(b)’s definition of crime of violence, a provision the\\n\\nCourt described as “similarly worded” to the residual clause struck down in Johnson.\\n\\nDimaya, 138 S. Ct. at 1210. In so holding, the opinion of the Court made three\\n\\nstatements potentially important to determining the scope of the new rule from\\n\\nJohnson. First, Dimaya indicated its ruling was a product of “adhering” to the\\n\\nanalysis set forth in Johnson. Id. Second, Dimaya called Johnson “a straightforward\\n\\ndecision, with equally straightforward application here” such that the “reasoning” of\\n\\nJohnson “effectively resolved the [issue] before” the Court in Dimaya.6 Id. at 1213.\\n\\n\\n 6\\n Notably, Dimaya could have, but did not, state that any “rule” from Johnson\\n“dictated” a result in Dimaya. Cf. Russo v. United States, 902 F.3d 880, 883 (8th Cir.\\n\\n 18\\n\\fFinally, Dimaya compared § 16(b) and § 924(e)(2)(B)(ii), stating that both statutes\\n\\n“‘require[] a court to picture the kind of conduct that the crime involves in “the\\n\\nordinary case” and to judge whether that abstraction presents’ some not-well-\\n\\nspecified-yet-sufficiently-large degree of risk.” Id. at 1216 (quoting Johnson, 135 S.\\n\\nCt. at 2556–57). Under this analytical framework, Dimaya concluded “§ 16(b)\\n\\nproduces, just as the ACCA’s residual clause did, ‘more unpredictability and\\n\\narbitrariness than the Due Process Clause tolerates.’” Id. at 1216 (quoting Johnson,\\n\\n135 S. Ct. at 2558).\\n\\n D. Analysis\\n\\n Based on Johnson and its progeny, Mr. Pullen describes the new and\\n\\nretroactive rule from Johnson as a right not to be sentenced under an ordinary-case\\n\\ncategorical approach requiring a judge to picture conduct of the crime and predict\\n\\nwhether that conduct presents a sufficiently large degree of risk. Before considering\\n\\nthe rule Mr. Pullen advances, we pause to address the iterations of the rule by this\\n\\ncourt and others. We then turn to the formulation of the rule endorsed by Mr. Pullen,\\n\\nultimately deciding it does not permit relief on a second or successive § 2255 claim\\n\\nchallenging the mandatory Guidelines because the Supreme Court has not yet\\n\\n\\n\\n\\n2018) (quoting Teague v. Lane, 489 U.S. 288, 301 (1989), for proposition that “[a]\\ncase announces a new rule if the result was not dictated by precedent existing at the\\ntime the defendant’s conviction became final” and concluding that any rule relative\\nto the mandatory Guidelines would be a new rule because the rule “is not dictated by\\nJohnson”).\\n 19\\n\\fannounced a rule with respect to the mandatory Guidelines. Thus, we agree with the\\n\\ndistrict court that Mr. Pullen’s motion does not actually satisfy § 2255(h)(2).\\n\\n1. Decisions Defining the Rule Announced in Johnson\\n\\n Several circuit court decisions, including our own decision in Greer, have\\n\\nstated the new rule created by Johnson as “a defendant’s right not to have his\\n\\nsentence increased under the residual clause of the ACCA.”7 Greer, 881 F.3d at\\n\\n1248; see also Green, 898 F.3d at 321 (“[I]n light of Beckles, Johnson’s holding as to\\n\\nthe residual clause in the ACCA created a right only as to the ACCA, and not a\\n\\nbroader right that applied to all similarly worded residual clauses, such as that found\\n\\nin the advisory Sentencing Guidelines.”); Brown, 868 F.3d at 303 (“Johnson only\\n\\nrecognized that ACCA’s residual clause was unconstitutionally vague.”). If this\\n\\nphrasing of the new rule from Johnson is correct, Mr. Pullen is not entitled to\\n\\nproceed on his § 2255 motion because his Guidelines range was increased as a result\\n\\nof application of USSG § 4B1.1 and the residual clause of USSG § 4B1.2(a)(2) of the\\n\\nmandatory Guidelines and not the residual clause of the ACCA.\\n\\n The Seventh Circuit, the only circuit to grant relief to a § 2255 movant relying\\n\\non Johnson to challenge USSG §§ 4B1.1, 1.2 of the mandatory Guidelines, has\\n\\nexpressed the new rule from Johnson as “a right not to have his sentence dictated by\\n\\n\\n\\n 7\\n The narrowness of that statement of the rule from Johnson has been called\\ninto question by Dimaya’s application of the rule to a statutory context outside of the\\nACCA—albeit on direct review. But we need not define the precise boundaries of the\\nrule today because Mr. Pullen’s attempt to apply Johnson to the mandatory\\nGuidelines fails even under his more expansive statement of that rule.\\n 20\\n\\fthe unconstitutionally vague language of the mandatory residual clause.” Cross, 892\\n\\nF.3d at 294; see Blackstone, 903 F.3d at 1027 (identifying quoted language from\\n\\nCross as Seventh Circuit’s statement of new right from Johnson). But the Ninth\\n\\nCircuit has concluded that the Seventh Circuit’s proposed rule is phrased at such a\\n\\nhigh level of generality that it runs afoul of Supreme Court teachings regarding the\\n\\nparameters for phrasing a new rule for purposes of a collateral proceeding. See\\n\\nBlackstone, 903 F.3d at 1026 (“The Supreme Court has repeatedly admonished our\\n\\ncourt not to advance on its own in determining what rights have been recognized by\\n\\nthe Supreme Court under AEDPA.”) (citations omitted). We need not consider\\n\\nwhether the Seventh Circuit’s articulation of the rule is so broad as to restate existing\\n\\nlaw, rather than announcing a new rule, because Mr. Pullen has espoused a more\\n\\nnarrow interpretation of the rule from Johnson. We consider Mr. Pullen’s phrasing of\\n\\nthe new rule now.\\n\\n2. Mr. Pullen’s Statement of the Rule\\n\\n Mr. Pullen argues the proper statement of the new rule from Johnson is the\\n\\nright not to be sentenced under an ordinary-case categorical approach that requires\\n\\nthe judge to imagine both the conduct necessary to commit the crime and the degree\\n\\nof risk posed by such conduct. Support for Mr. Pullen’s interpretation of Johnson can\\n\\nbe drawn from the dissent in Welch and from Dimaya. On the former, as pointed out\\n\\nabove, the dissent in Welch identified the new rule from Johnson in a manner similar\\n\\nto the rule stated by Mr. Pullen. See Welch, 136 S. Ct. at 1272 (Thomas, J.,\\n\\ndissenting) (“Johnson’s new constitutional rule is that a law is unconstitutionally\\n\\n 21\\n\\fvague if it ‘requires a court to picture the kind of conduct that the crime involves in\\n\\n“the ordinary case,” and to judge whether that abstraction presents a serious potential\\n\\nrisk,’ of some result.” (quoting Johnson, 135 S. Ct. at 2557)). With respect to the\\n\\nlatter, Dimaya read Johnson as concluding that a residual clause is unconstitutionally\\n\\nvague if it “‘requires a court to picture the kind of conduct that the crime involves in\\n\\n“the ordinary case,” and to judge whether that abstraction presents’ some not-well-\\n\\nspecified-yet-sufficiently-large degree of risk.” 138 S. Ct. at 1216 (quoting Johnson,\\n\\n135 S. Ct. at 2556–57). Assuming for the sake of argument that Mr. Pullen is correct\\n\\nregarding the proper phrasing of the new rule from Johnson, three considerations\\n\\ndefeat his ability to rely on the rule to proceed with a second or successive § 2255\\n\\nmotion challenging the mandatory Guidelines.\\n\\n First, central to whether Mr. Pullen can rely on any new rule from Johnson is\\n\\nwhether application of the rule to the mandatory Guidelines is “dictated by\\n\\nprecedent” and “apparent to all reasonable jurists” as opposed to “susceptible to\\n\\ndebate among reasonable minds.” Russo, 902 F.3d at 883 (quotation marks omitted).8\\n\\nNeither Johnson, Welch, nor Dimaya addressed a challenge to a provision of the\\n\\nGuidelines, mandatory or advisory. Instead, the only case to address a Johnson-based\\n\\nchallenge to the Guidelines is Beckles, which concluded the advisory Guidelines were\\n\\n\\n 8\\n The Eighth Circuit reached this conclusion based on a trio of Supreme Court\\ncases discussing principles governing new rules: Teague v. Lane, 489 U.S. 288, 301\\n(1989), Chaidez v. United States, 568 U.S. 342, 347 (2013), and Butler v. MecKellar,\\n494 U.S. 407, 415 (1990). See Russo v. United States, 902 F.3d 880, 883 (8th Cir.\\n2018).\\n\\n 22\\n\\fnot susceptible to a void for vagueness challenge. 137 S. Ct. at 897. And while the\\n\\nadvisory nature of the Guidelines at issue in Beckles was undoubtedly important to\\n\\nthe Court’s holding, the concurrence in Beckles indicated that Johnson’s applicability\\n\\nto the mandatory Guidelines remained an open question. See id. at 903 n.4\\n\\n(Sotomayor, J. concurring in the judgment) (“The Court’s adherence to the\\n\\nformalistic distinction between mandatory and advisory rules at least leaves open the\\n\\nquestion whether defendants sentenced to terms of imprisonment before our decision\\n\\nin United States v. Booker . . . may mount vagueness attacks on their sentences.”).9 If\\n\\na question remains “open,” it is not dictated by precedent. See Brown, 868 F.3d at\\n\\n301 (“[I]f the existence of a right remains an open question as a matter of Supreme\\n\\nCourt precedent, then the Supreme Court has not ‘recognized’ that right.”); Raybon,\\n\\n867 F.3d at 630 (“Because it is an open question, it is not a ‘right’ that ‘has been\\n\\nnewly recognized by the Supreme Court’ let alone one that was ‘made retroactively\\n\\napplicable to cases on collateral review.’” (quoting 28 U.S.C. § 2255(f)(3))); see also\\n\\nBlackstone, 903 F.3d at 1026–27 (relying on open nature of question when affirming\\n\\ndenial of § 2255 relief).\\n\\n Second, central to why the question remains open is that Johnson involved a\\n\\nfederal statute, while the Guidelines, even in their mandatory form, were agency-\\n\\n\\n 9\\n Even after Dimaya, Justice Sotomayor still believes the question remains\\nopen. See Brown v. United States, 139 S. Ct. 14, 15 (2018) (Sotomayor, J., dissenting\\nfrom denial of certiorari) (“But for petitioners like Brown, who were sentenced long\\nbefore Johnson, this Court has thus far left the validity of their sentences an open\\nquestion. The Court’s decision today all but ensures that the question will never be\\nanswered.” (citation omitted)).\\n 23\\n\\fcreated rules formed by the U.S. Sentencing Commission to supplement existing,\\n\\ncongressionally-enacted statutory maximum and minimum sentencing ranges. While\\n\\nthe Guidelines established a mandatory range, this mandatory range always fell\\n\\nwithin the statutory minimum and maximum affixed by Congress. See USSG\\n\\n§ 5G1.1. Thus, regardless of any vagueness in the mandatory Guidelines, the\\n\\nSupreme Court might conclude the statutory scheme enacted by Congress placed the\\n\\ndefendant on fair notice of the possible penalties he faced for committing an offense.\\n\\nCf. Beckles, 137 S. Ct. at 893 (“By specifying ‘the range of penalties that prosecutors\\n\\nand judges may seek and impose,’ Congress ha[s] ‘fulfilled its duty.’” (quoting\\n\\nBatchelder, 442 U.S. at 126)); id. at 894 (“All of the notice required is provided by\\n\\nthe applicable statutory range, which establishes the permissible bounds of the\\n\\ncourt’s sentencing discretion.”).10\\n\\n Third, where the Guidelines replaced an open-ended sentencing scheme under\\n\\nwhich judges could impose any sentence within the statutory range, even a somewhat\\n\\nvague residual clause in the Guidelines provided more guidance to sentencing judges\\n\\nthan existed prior to the mandatory Guidelines.11 See In re Griffin, 823 F.3d 1350,\\n\\n\\n 10\\n By concluding that the Supreme Court might not strike the residual clause in\\nthe mandatory Guidelines as void for vagueness, we do not mean to suggest the Court\\nwill reach such a result.\\n 11\\n Mr. Pullen does not identify any case holding that an open-ended sentencing\\nscheme under which a judge could impose any sentence between a properly\\nannounced statutory minimum and statutory maximum failed under the Due Process\\nClause and the void for vagueness doctrine.\\n\\n\\n 24\\n\\f1354–55 (11th Cir. 2016) (per curiam) (“Because there is no constitutional right to\\n\\nsentencing only under guidelines, the limitations the Guidelines place on a judge’s\\n\\ndiscretion cannot violate a defendant’s right to due process by reason of being vague.\\n\\n. . . Even vague guidelines cabin discretion more than no guidelines at all.”).12 And,\\n\\nbecause the Supreme Court has already indicated in Beckles that a defendant received\\n\\nfair notice of the broad, but specified, range of penalties he faced under the statutory\\n\\nscheme, 137 S. Ct. at 894–95, and it could reasonably conclude that the sentencing\\n\\njudge’s discretion was more cabined with the residual clause in USSG § 4B1.2(a)(2)\\n\\nthan in the absence of any Guidelines, the Court might conclude that the two\\n\\nconcerns underlying the void for vagueness doctrine are not present in the context of\\n\\nthe mandatory Guidelines.\\n\\n\\n\\n\\n 12\\n To be sure, the Supreme Court could conclude the language of USSG\\n§ 4B1.2, within the context of the mandatory Guidelines, did not satisfy due process\\nand void for vagueness considerations. Justice Sotomayor suggested the possibility of\\nsuch a result within her concurrence in Beckles:\\n\\n [A] district court’s reliance on a vague Guideline [such as U.S.S.G. § 4B1.2]\\n creates serious risk of “arbitrary enforcement.” . . . It introduces an\\n unacceptable degree of arbitrariness into sentencing proceedings to begin by\\n applying a rule that is so vague that efforts to interpret it boil down to\\n guesswork and intuition.”\\n\\n137 S. Ct. at 901 (Sotomayor, J., concurring) (citations omitted). The point is that the\\nSupreme Court has not yet answered the question. This is fatal to Mr. Pullen’s\\nsuccessive § 2255 motion, especially within in the context of a § 2255(h)(2) analysis\\nwhere Mr. Pullen must identify a new rule retroactively applicable to his claim for\\nrelief.\\n\\n 25\\n\\f In accord with the second and third reasons discussed above, Beckles observed\\n\\nthat the Court has “invalidated two kinds of criminal laws as ‘void for vagueness’:\\n\\nlaws that define criminal offenses and laws that fix the permissible sentences for\\n\\ncriminal offenses.” Id. at 892 (first and third emphases added). As to the second type\\n\\nof laws, “‘statutes fixing sentences’ must specify the range of available sentences\\n\\nwith ‘sufficient clarity.’” Id. (emphasis added) (first quoting Johnson, 135 S. Ct. at\\n\\n2557, then quoting United States v. Batchelder, 442 U.S. 114, 123 (1979)). But, the\\n\\nmandatory Guidelines were not laws or statutes; rather, they merely operated like\\n\\nstatutes. Thus, while the Supreme Court might one day conclude, by relying on the\\n\\nactual innocence gateway,13 that the mandatory Guidelines sufficiently took the form\\n\\nof a law or a statute so as to expose the mandatory Guidelines to a void for vagueness\\n\\nchallenge, such a conclusion or rule is (1) debatable and (2) essential to Mr. Pullen’s\\n\\nability to prevail. Accordingly, Mr. Pullen’s § 2255 motion is dependent on a rule not\\n\\nyet established by the Supreme Court and, consequently, not made retroactively\\n\\napplicable by the Court.14 This conclusion provides a sufficient basis to preclude Mr.\\n\\n\\n 13\\n This circuit does not recognize actual innocence in the sentencing context,\\nexcept in capital sentences. See United States v. Denny, 694 F.3d 1185, 1191 (10th\\nCir. 2012) (“[A] defendant cannot be actually innocent of a noncapital sentence[.]”\\n(internal quotation marks omitted)). But other circuits do permit such arguments, see\\nCristin v. Brennan, 281 F.3d 404, 421–22 (3d Cir. 2002) (collecting cases), and the\\nSupreme Court has left open the question of whether a prisoner can rely on the actual\\ninnocence gateway to challenge a noncapital sentence, see Dretke v. Haley, 541 U.S.\\n386, 393–94 (2004).\\n 14\\n The Court could conclude that the mandatory Guidelines, although not\\nstatutes, are subject to a void for vagueness challenge and that they do not satisfy due\\n\\n 26\\n\\fPullen from proceeding on his § 2255 motion. See Blackstone, 903 F.3d at 1028;\\n\\nRusso, 902 F.3d at 883.\\n\\n3. Summation\\n\\n Mr. Pullen is not entitled to proceed on his § 2255 motion under his iteration\\n\\nof the new rule from Johnson. Accordingly, the district court correctly concluded Mr.\\n\\nPullen failed to actually satisfy the precondition established by § 2255(h)(2) for filing\\n\\na second or successive § 2255 motion. This conclusion is consistent with the rulings\\n\\nof six of our seven sibling circuits, which deny § 2255 relief because Johnson either\\n\\n(1) did not recognize a new right applicable to the mandatory Sentencing Guidelines\\n\\nfor purposes of the requirement in 28 U.S.C. § 2255(f)(3) or (2) did not create a new\\n\\nrule applicable to the mandatory Sentencing Guidelines for purposes of meeting the\\n\\nrequirements in 28 U.S.C. § 2255(h)(2). See Blackstone, 903 F.3d at 1028 (denying\\n\\n§ 2255 relief under § 2255(f)(3) as Johnson did not recognize right as to mandatory\\n\\nGuidelines); Russo, 902 F.3d at 883–84 (same); Green, 898 F.3d at 321–33 (same);\\n\\nBrown, 868 F.3d at 301–02 (same); Raybon, 867 F.3d at 629–31 (same); In re\\n\\n\\n\\nprocess concerns because they permitted judges to prescribe sentencing ranges\\narbitrarily. See Beckles, 137 S. Ct. at 894-95 (explaining that a vague law which\\npermits judges to prescribe sentencing ranges invites arbitrary enforcement). But, to\\ndate, the Supreme Court has not announced a new rule retroactively applicable to the\\nmandatory Guidelines. Nor, as apparent from the denials of certiorari, has the\\nSupreme Court seen fit to take up the issue of Johnson’s impact on the mandatory\\nGuidelines. And unless and until it does, Mr. Pullen cannot establish that his\\nsuccessive § 2255 motion actually relies on a new rule for purposes of authorization\\nunder § 2255(h)(2).\\n\\n\\n 27\\n\\fGriffin, 823 F.3d at 1354–56 (denying authorization under § 2255(h)(2) because\\n\\nJohnson did not announce new rule applicable to the mandatory Guidelines).15 But\\n\\nsee Cross, 892 F.3d at 294.16 It is also consistent with the Supreme Court’s recent\\n\\ndenials of certiorari on a series of petitions seeking reversal of the aforementioned\\n\\ncircuit decisions. And while denials of certiorari often do not shed light on the merits\\n\\n\\n 15\\n Although the Fourth, Sixth and Eleventh Circuits reached their decisions\\nbefore Dimaya, the Sixth and Eleventh Circuits continue to rely respectively upon\\nRaybon and Griffin after Dimaya. See Robinson v. United States, 736 F. App’x 599,\\n599–600 (6th Cir. 2018) (holding Raybon had not been overruled by a Supreme Court\\ndecision and remained law of the circuit); Foxx v. United States, 736 F. App’x 253,\\n254 (11th Cir. 2018) (“[W]e cannot deviate from In re Griffin given the current state\\nof the law, and this forecloses Foxx’s appeal.”); Lewis v. United States, 733 F. App’x\\n501, 503 (11th Cir. 2018) (concluding In re Griffin “remains binding”). It does not\\nappear the Fourth Circuit has revisited the issue since Dimaya.\\n Separately, we observe that while In re Griffin involved the denial of\\nauthorization for failing to make a prima facie showing under § 2255(h)(2) and 28\\nU.S.C. § 2244(b)(3), 823 F.3d 1350, 1351, 1354–56 (11th Cir. 2016) (per curiam),\\nMr. Pullen already passed through the prima facie gate when we granted\\nauthorization. Thus, rather than relying on § 2244(b)(3) when dismissing Mr.\\nPullen’s § 2255 motion, the district court correctly relied on § 2244(b)(4) to conclude\\nMr. Pullen did not satisfy the requirements set forth by § 2255(h)(2).\\n 16\\n Mr. Pullen argues the First Circuit, in Moore v. United States, 871 F.3d 72\\n(1st Cir. 2017), reached the same result as the Seventh Circuit. Moore, however,\\ninvolved a preliminary, or prima facie, determination under 28 U.S.C. § 2244(b)(3)\\nthat a § 2255 movant could rely on Johnson to challenge the mandatory Guidelines\\nand not the conclusion that the second or successive § 2255 motion was actually\\npremised on a new rule of constitutional law made retroactive by the Supreme Court\\nfor purposes of the 28 U.S.C. § 2244(b)(4) analysis. See Moore, 871 F.3d at 80\\n(“Having explained the focused yet tentative nature of the examination called for in\\nevaluating a request to file a second or successive § 2255 motion, we turn next to\\nMoore’s motion.”). Thus, even if other language in Moore suggests the panel of the\\nFirst Circuit would have reached the same conclusion had it been conducting a\\n§ 2244(b)(4) analysis, see id. at 85, Moore does not establish any binding precedent\\nas to the § 2244(b)(4) question.\\n\\n\\n 28\\n\\fof an issue, see United States v. Carver, 260 U.S. 482, 490 (1923), these denials of\\n\\ncertiorari (1) were over a two justice dissent, which expressly states the question is\\n\\nopen and not likely to ever be resolved; and (2) the individual defendants are now\\n\\nprecluded from filing new and timely § 2255 motions based on Johnson should the\\n\\nSupreme Court later adopt the position advanced in their certiorari petitions.17\\n\\n IV. CONCLUSION\\n\\n We conclude Johnson did not create a new rule of constitutional law applicable to\\n\\nthe mandatory Guidelines because (1) Beckles suggests the void for vagueness doctrine’s\\n\\napplicability to the mandatory Guidelines remains an open question; (2) the Guidelines,\\n\\neven in their mandatory form, were not statutes; and (3) even a vague provision of the\\n\\nGuidelines provided more guidance to defendants and sentencing judges than did the\\n\\ncongressionally-enacted statutory minimum and maximum sentences that provided\\n\\ndefendants sufficient due process. Although the Supreme Court might reject all of these\\n\\nconsiderations and invalidate the residual clause of the mandatory Guidelines, it has not\\n\\nyet done so. Because Johnson did not create a new rule of constitutional law applicable to\\n\\n\\n\\n\\n 17\\n In concluding that, regardless of how the new rule from Johnson is phrased,\\nJohnson does not create a new rule of constitutional law relative to the mandatory\\nGuidelines, we find it unnecessary to decide whether Greer’s statement of the rule\\nfrom Johnson is too narrow in light of Dimaya. Rather, it is clear Greer’s holding,\\nthat Johnson does not create a new rule of constitutional law applicable to the\\nmandatory Guidelines, remains good law.\\n\\n\\n 29\\n\\fthe mandatory Guidelines, the district court properly denied relief and dismissed Mr.\\n\\nPullen’s § 2255 motion pursuant to § 2255(h)(2). Accordingly, we AFFIRM.18\\n\\n\\n\\n\\n 18\\n We DENY Mr. Pullen’s motion to file a pro se opening brief and his motion\\nto file a pro se supplemental brief.\\n 30\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":391,"cells":{"id":{"kind":"number","value":4585526,"string":"4,585,526"},"name":{"kind":"string","value":"In RE: UNITED WESTERN BANCORP, INC., Debtor. Simon E. Rodriguez, in His Capacity as Chapter 7 Trustee for the Bankruptcy Estate of United Western Bancorp, Inc., Plaintiff - Appellant, v. Federal Deposit Insurance Corporation, in Its Capacity as Receiver for United Western Bank, Defendant - Appellee."},"name_abbreviation":{"kind":"string","value":"Rodriguez v. Fed. Deposit Ins. Corp. (In Re United W. Bancorp, Inc.)"},"decision_date":{"kind":"string","value":"2019-01-29"},"docket_number":{"kind":"string","value":"17-1281"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Briscoe, Seymour, Holmes\", \"parties\": \"\", \"opinions\": [{\"author\": \"BRISCOE, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS January 29, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n In re: UNITED WESTERN BANCORP,\\n INC.,\\n\\n Debtor.\\n\\n ------------------------------\\n\\n SIMON E. RODRIGUEZ, in his capacity\\n as Chapter 7 Trustee for the bankruptcy\\n estate of United Western Bancorp, Inc.,\\n\\n Plaintiff - Appellant,\\n\\n v. No. 17-1281\\n (D.C. No. 1:16-CV-02475-WJM)\\n FEDERAL DEPOSIT INSURANCE (D. Colo.)\\n CORPORATION, in its capacity as\\n Receiver for United Western Bank,\\n\\n Defendant - Appellee.\\n _________________________________\\n\\n ORDER\\n _________________________________\\n\\nBefore BRISCOE, SEYMOUR, and HOLMES, Circuit Judges.\\n _________________________________\\n\\n This matter is before the court on the appellant’s Petition for Panel Rehearing and\\n\\nMotion for Clarification. Upon consideration, the request for panel rehearing is granted in\\n\\npart and to the limited extent that footnote 3 of the original Opinion will be deleted. The\\n\\nPetition is otherwise denied, as is the motion to clarify. A copy of the revised version is\\n\\fattached to this order. The clerk is directed to file the amended version of the Opinion\\n\\neffective the date of this order.\\n\\n\\n Entered for the Court\\n\\n\\n\\n ELISABETH A. SHUMAKER, Clerk\\n\\n\\n\\n\\n 2\\n\\f FILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS January 29, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n In re: UNITED WESTERN BANCORP,\\n INC.,\\n\\n Debtor.\\n\\n ------------------------------\\n\\n SIMON E. RODRIGUEZ, in his capacity\\n as Chapter 7 Trustee for the bankruptcy\\n estate of United Western Bancorp, Inc.,\\n\\n Plaintiff - Appellant,\\n\\n v. No. 17-1281\\n\\n FEDERAL DEPOSIT INSURANCE\\n CORPORATION, in its capacity as\\n Receiver for United Western Bank,\\n\\n Defendant - Appellee.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Colorado\\n (D.C. No. 1:16-CV-02475-WJM)\\n _________________________________\\n\\nMark E. Haynes (Michael M. Lane, with him on the briefs), Ireland Stapleton Pryor &\\nPascoe, P.C., Denver, Colorado, appearing for Appellant.\\n\\nJoseph Brooks, Counsel (Colleen J. Boles, Assistant General Counsel, Kathryn R.\\nNorcross, Senior Counsel, and Michelle Ognibene, Counsel, on the brief), Federal\\nDeposit Insurance Corporation, Appellate Litigation, Arlington, Virginia, appearing for\\nAppellees.\\n _________________________________\\n\\fBefore BRISCOE, SEYMOUR, and HOLMES, Circuit Judges.\\n _________________________________\\n\\nBRISCOE, Circuit Judge.\\n _________________________________\\n\\n This appeal, which arises out of a bankruptcy adversary proceeding, concerns\\n\\nthe ownership of a federal tax refund. The tax refund was issued by the Internal\\n\\nRevenue Service (IRS) to United Western Bancorp, Inc. (UWBI), a thrift holding\\n\\ncompany that had, under the terms of a written “Tax Allocation Agreement,” filed\\n\\nconsolidated returns on behalf of itself and several subsidiary corporations. The tax\\n\\nrefund was the result, however, of net operating losses incurred by United Western\\n\\nBank (the Bank), one of UWBI’s subsidiaries.\\n\\n Simon Rodriguez, in his capacity as the Chapter 7 Trustee for the bankruptcy\\n\\nestate of UWBI, initiated this adversary proceeding against the Federal Deposit\\n\\nInsurance Corporation (FDIC), as receiver for the Bank, alleging that the tax refund\\n\\nwas owned by UWBI and was thus part of the bankruptcy estate. The bankruptcy\\n\\ncourt agreed and entered summary judgment in favor of the Trustee. The FDIC\\n\\nappealed to the district court, which reversed the decision of the bankruptcy court.\\n\\nThe Trustee now appeals from the district court’s decision.\\n\\n Exercising jurisdiction pursuant to 28 U.S.C. § 158(d)(1), we agree with the\\n\\ndistrict court that the tax refund belongs to the FDIC, as receiver for the Bank.\\n\\nConsequently, we affirm the judgment of the district court and remand to the\\n\\nbankruptcy court for further proceedings.\\n\\n\\n\\n 2\\n\\f I\\n\\n a) UWBI and its affiliates\\n\\n UWBI is a Colorado corporation and a “unitary thrift [or bank] holding\\n\\ncompany.” Aplt. App., Vol. I at 41. UWBI owned several affiliate subsidiaries,\\n\\nincluding the Bank. The Bank, UWBI’s principal subsidiary, was headquartered in\\n\\nDenver and operated a community-based banking network that was comprised of\\n\\neight banking locations and a loan servicing office.\\n\\n b) The Tax Allocation Agreement\\n\\n UWBI’s affiliate subsidiaries were “members of an affiliated group . . . within\\n\\nthe meaning of Section 1504(a) of the Internal Revenue Code of 1986.” Id. at 41;\\n\\nsee 26 U.S.C. § 1504(a). Beginning in 2004 and continuing thereafter, the affiliated\\n\\ngroup “file[d] . . . consolidated federal income tax returns.” Aplt. App., Vol. I at 41.\\n\\n On January 1, 2008, UWBI and its affiliate subsidiaries entered into a Tax\\n\\nAllocation Agreement (the Agreement).1 The Agreement’s preamble noted that the\\n\\naffiliates had previously filed, and intended to continue to file, “consolidated federal\\n\\nincome tax return[s].” Id. The preamble further stated that “UWBI and the Affiliates\\n\\ndesire[d] to establish a method for (i) allocating the consolidated tax liability of the\\n\\nGroup among its members, (ii) reimbursing UWBI for the payment of such tax\\n\\nliability, and (iii) compensating each member of the Group for the use of its losses by\\n\\nany other member of the Group.” Id.\\n\\n\\n 1\\n Prior to 2008, UWBI and its affiliates had filed taxes under similar, but not\\nidentical, written agreements. Aplt. App., Vol. I at 182.\\n 3\\n\\f The Agreement in turn, under Section A, entitled “General Rule – Federal,”\\n\\noutlined how federal tax payments would be made:\\n\\n 1. Except as specifically set forth herein to the contrary, each\\n Affiliate shall pay UWBI an amount equal to the federal income tax\\n liability such Affiliate would have incurred were it to file a separate\\n return (or, if appropriate, a consolidated return with its subsidiary\\n affiliates). If a regulated first-tier Affiliate incurs a net operating loss or\\n excess tax credits, the regulated Affiliate is entitled to a refund equal to\\n the amount that it would have been entitled to receive had it not joined\\n in the filing of a consolidated return with UWBI. Similar treatment is\\n optional at UWBI discretion for nonregulated first-tier Affiliates. Any\\n refund shall generally not exceed the amount claimed or received as a\\n refund resulting from a carryback claim filed by UWBI. However, this\\n shall not prevent UWBI from the ability to make a refund over the\\n amount received or claimed as a refund or carryback, if in its sole\\n discretion it believes such payment is in its best interest. Additionally,\\n if part of [sic] all of an unused consolidated net operating loss, net\\n capital loss, tax credit or similar type item is allocated to an Affiliate\\n pursuant to Regulations Section 1.1502-21, and it is carried back, if\\n utilized, or it is carried forward, whether or not utilized, to a year in\\n which such Affiliate filed a separate income tax return or a consolidated\\n federal income tax return with another group, any refund or reduction in\\n tax liability arising from the carryback or carryforward shall be retained\\n by such Affiliate and such item shall not enter into the calculation of\\n liability to or from UWBI.\\n\\n 2. In essence, this Agreement requires that each first-tier\\n subsidiary be treated as a separate taxpayer with UWBI merely being an\\n intermediary between an Affiliate and the Internal Revenue Service\\n (“IRS”).\\n\\nId. The Agreement also, in Section C, included “specific policies designed to cover\\n\\ncertain factual scenarios” including, for example, “[c]haritable contributions.” Id. at\\n\\n42.\\n\\n Section G of the Agreement stated that “[e]ach Affiliate hereby appoints\\n\\nUWBI as its agent, as long as such Affiliate is a member of the UWBI group, for the\\n\\n\\n 4\\n\\fpurpose of filing such consolidated Federal income tax returns for the UWBI group\\n\\nas UWBI may elect to file and making any election, application or taking any action\\n\\nin connection therewith on behalf of the Affiliates.” Id. at 44. Each affiliate also,\\n\\nunder Section G, “consent[ed] to the filing of any such returns and the making of any\\n\\nsuch elections and applications.” Id.\\n\\n Under Section H, entitled “Miscellaneous,” the Agreement contained a\\n\\nprovision regarding refunds from the IRS:\\n\\n In the event of any adjustment to the tax returns of the Group as filed\\n (by reason of an amended return, claim for refund, or an audit by a\\n taxing authority), the liability of the parties to this Agreement shall be\\n re-determined to give effect to any such adjustment as if it had been\\n made as part of the original computation of tax liability, and payments\\n between the appropriate parties shall be made within 10 business days\\n after any such payments are made or refunds are received, or, in the\\n case of contested proceedings, within 10 business days after a final\\n determination of the contest.\\n\\nId. (quoting § H.1).\\n\\n Also under Section H, the Agreement stated, in pertinent part:\\n\\n The intent of this Agreement is to provide an equitable allocation of the\\n tax liability of the Group among UWBI and the Affiliates. Any\\n ambiguity in the interpretation hereof shall be resolved, with a view to\\n effectuating such intent, in favor of any insured depository institution.\\n\\nId. at 45 (quoting § H.4).\\n\\n c) UWBI’s filing of federal tax returns on behalf of the group\\n\\n UWBI proceeded, in accordance with the terms of the Agreement, to file\\n\\nfederal income tax returns for the consolidated group. In doing so, “the tax liabilities\\n\\n\\n\\n\\n 5\\n\\fand tax benefits” were computed “on a separate-entity basis for each Affiliate,” but\\n\\nUWBI ultimately filed one tax return “on a consolidated basis.” Id. at 82.\\n\\n For the tax year 2008, UWBI filed a federal income tax return for the affiliated\\n\\ngroup and reported that the Bank generated $34,397,709 in taxable income. The\\n\\nreturn indicated that UWBI itself did not generate taxable income in 2008.\\n\\n In 2010, the Bank suffered at least $35,351,690 in losses. Based upon the\\n\\nBank’s 2010 net operating losses, UWBI, at some point in 2011, filed on behalf of\\n\\nthe affiliated group a tax refund request of $4,846,625 to recover a portion of the\\n\\ntaxes paid by the Bank on its 2008 taxable income.2\\n\\n d) Appointment of the FDIC as receiver for the Bank\\n\\n The Bank was a federally chartered savings and loan association. On January\\n\\n21, 2011, the Office of Thrift Supervision (OTS) closed the Bank and appointed the\\n\\nFederal Deposit Insurance Corporation (FDIC) as receiver. Shortly thereafter, the\\n\\nFDIC notified the IRS of these events.\\n\\n e) UWBI’s bankruptcy proceedings\\n\\n Because the Bank was UWBI’s principal, if not sole, source of income, the\\n\\nBank’s receivership resulted in UWBI becoming insolvent. On March 2, 2012,\\n\\nUWBI filed a petition for Chapter 11 bankruptcy. As of that date, the tax refund\\n\\nrequest that UWBI filed in 2011 was still pending before the IRS.\\n\\n\\n\\n\\n 2\\n The Internal Revenue Code permits corporations to “carryback” net operating\\nlosses for up to two taxable years. See 26 U.S.C. § 172.\\n 6\\n\\f On August 30, 2012, the FDIC filed a proof of claim in UWBI’s bankruptcy\\n\\ncase in the aggregate amount of $4,847,000. The FDIC alleged that, as receiver for\\n\\nthe Bank, it was entitled to the federal tax refund that was due and owing from the\\n\\nIRS to the affiliate group because the refund stemmed exclusively from the Bank’s\\n\\nbusiness loss carrybacks. The FDIC also alleged that its claim covered “potential\\n\\nfraudulent transfers or unlawful dividends, unearned insurance premiums to the\\n\\nextent that the source of the premium payments was the Bank, insurance proceeds\\n\\npaid under applicable insurance coverage for any such losses, and other protective\\n\\nclaims.” Id. at 62.\\n\\n The bankruptcy case was converted to a Chapter 7 proceeding on April 15,\\n\\n2013. Rodriguez was appointed as the Chapter 7 trustee for the bankruptcy estate.\\n\\n f) The adversary proceeding\\n\\n On April 16, 2014, the Trustee initiated this adversary proceeding by filing a\\n\\ncomplaint against the FDIC asserting three claims: (1) a claim for declaratory relief\\n\\nin the form of a determination that the tax refund was the property of the debtor\\n\\nrather than the FDIC, (2) a claim for turnover of the tax refund, pursuant to 11 U.S.C.\\n\\n§ 542, to the extent the FDIC possessed the tax refund, and (3) an objection to the\\n\\nFDIC’s proof of claim. The bankruptcy court subsequently authorized the tax refund\\n\\nto be deposited into the court’s registry. On November 25, 2014, the FDIC filed a\\n\\ncounterclaim alleging that the FDIC, as the receiver for and successor to the Bank,\\n\\nowned the tax refund.\\n\\n\\n\\n 7\\n\\f On October 30, 2015, the parties filed cross motions for summary judgment.\\n\\nThe FDIC argued that there was “no provision in the . . . Agreement that transfers\\n\\nownership of the Bank-generated tax refunds to [UWBI], indicates that the Bank\\n\\nintended to transfer beneficial ownership of the tax refunds to [UWBI], or otherwise\\n\\nalters the widely recognized default rule regarding ownership of tax refunds by the\\n\\nentity in a consolidated tax group that generated those tax refunds.” Aplt. App., Vol.\\n\\nI at 78. The FDIC also argued that “[e]ven if the anticipated tax refund is paid to\\n\\n[UWBI], [UWBI] acts as agent for the Affiliated Group and, therefore, would only\\n\\nhold bare legal title in the tax refund.” Id. The Trustee argued, in contrast, that the\\n\\nAgreement “establishe[d] a debtor-creditor relationship between [UWBI] and the\\n\\nBank with respect to any tax refunds” and that “[i]f and when the Refund [wa]s paid\\n\\nto UWBI the funds w[ould] therefore become property of the [bankruptcy] Estate and\\n\\n[the FDIC] w[ould] have an unsecured, nonpriority claim for its pro rata share.” Id.\\n\\nat 178.\\n\\n In 2015, the IRS, after completing an audit, issued a refund in the amount of\\n\\n$4,081,334.67.\\n\\n On September 16, 2016, the bankruptcy court issued an opinion and order\\n\\ngranting summary judgment in favor of the Trustee and denying the FDIC’s motion\\n\\nfor summary judgment. In doing so, the bankruptcy court began by noting that 11\\n\\nU.S.C. § 541 outlines the creation of a bankruptcy estate and provides, in pertinent\\n\\npart, that the estate includes “‘all legal or equitable interests of the debtor in property\\n\\nas of the commencement of the case . . . wherever located and by whomever held.’”\\n\\n 8\\n\\fAplt. App., Vol. II at 382 (quoting § 541(a)). The bankruptcy court also noted that\\n\\n“[a] long line of bankruptcy cases (even pre-dating the modern Bankruptcy Code)\\n\\ndictate that if a debtor owns or is entitled to a federal loss carryback tax refund, such\\n\\nrefund generally becomes property of the debtor’s bankruptcy estate.” Id. at 383.\\n\\n The bankruptcy court concluded that the Agreement, “the Internal Revenue\\n\\nCode, and the IRS regulations all dictate that [UWBI], as the bank holding company\\n\\nfor the Affiliated Group has at least bare legal title to the Tax Refund.” Id. at 386\\n\\n(emphasis in original). “After all,” the bankruptcy court noted, “26 C.F.R. § 1.1502-\\n\\n77(d)(5) requires that the Tax Refund be made ‘directly to and in the name of’\\n\\n[UWBI].” Id.\\n\\n The bankruptcy court in turn concluded that the FDIC failed to establish that\\n\\nthe Bank had equitable ownership of the Tax Refund. In support of this conclusion,\\n\\nthe bankruptcy court noted that “neither the Internal Revenue Code nor the IRS\\n\\nregulations establish which entity, [UWBI] or the Bank, has equitable or beneficial\\n\\nownership of the Tax Refund.” Id.\\n\\n The bankruptcy court also determined that the Agreement created a debtor-\\n\\ncreditor relationship between UWBI and the Bank with respect to the tax refund. In\\n\\nparticular, the bankruptcy court concluded that the Agreement (a) “created fungible\\n\\npayment obligations through an intercompany account of payments and\\n\\nreimbursements” that indicated “the parties were creating a debtor-creditor\\n\\nrelationship,” (b) contains no escrow, segregation, or use restrictions regarding what\\n\\nUWBI can or cannot do when it receives a tax refund from the IRS, and (c) delegates\\n\\n 9\\n\\fdecision-making on tax matters to UWBI. Id. at 390. Consequently, the bankruptcy\\n\\ncourt concluded that UWBI was “the beneficial owner of the Tax Refunds,” and thus\\n\\nthe Tax Refund “belong[ed] to the Trustee (as Trustee of the [UWBI] bankruptcy\\n\\nestate).” Id.\\n\\n Based upon these conclusions, the bankruptcy court determined “that the\\n\\nTrustee [wa]s entitled to the Tax Refund.” Id. at 400. The bankruptcy court\\n\\nemphasized that this “d[id] not leave the FDIC without a remedy” because it was\\n\\n“still a general unsecured creditor of the [UWBI] bankruptcy estate and [could] share\\n\\npari passu with any other allowed general unsecured claims.” Id. at 400-01.\\n\\n The bankruptcy court entered judgment in the adversary proceeding on\\n\\nSeptember 16, 2016.\\n\\n g) The district court’s decision\\n\\n The FDIC appealed and, on July 10, 2017, the district court issued an order\\n\\nreversing the judgment of the bankruptcy court. The district court concluded, in\\n\\npertinent part, that the Agreement was “ambiguous regarding whether [UWBI] may\\n\\nkeep the tax refund in the present circumstances” and “that any ambiguity [should] be\\n\\nconstrued in favor of the Bank.” Aplt. App., Vol. III at 529. The district court noted\\n\\nthat the plain language of Section A.2 of the Agreement “declare[d] that the purpose\\n\\nof the [Agreement] is to set up an arrangement in which [UWBI] acts as nothing\\n\\nmore than a go-between, as between the subsidiaries and the IRS.” Id. at 552. The\\n\\ndistrict court also concluded that Section H.4 of the Agreement required it to construe\\n\\nany ambiguities in favor of the Bank and that, consequently, it was required to\\n\\n 10\\n\\finterpret the Agreement as requiring UWBI “to act as agent on behalf of the Bank in\\n\\nobtaining and remitting the refund.” Id. at 559. Accordingly, the district court\\n\\nconcluded that UWBI “held no more than legal title to the Refund, while the Bank\\n\\nheld equitable title,” and thus “[t]he Refund [wa]s not part of [UWBI’s] bankruptcy\\n\\nestate.” Id. at 560.\\n\\n The Trustee now appeals from the district court’s decision.\\n\\n II\\n\\n The Trustee’s arguments on appeal\\n\\n The Trustee argues that under “[t]he plain language” of the Agreement,\\n\\n“UWBI holds equitable title to the Tax Refund, and thus . . . the Refund is property\\n\\nof the UWBI estate.” Aplt. Br. at 12. In support, the Trustee asserts that the\\n\\nAgreement “imposes two reciprocal obligations.” Id. He contends that “[i]t requires\\n\\neach affiliate to pay to UWBI funds equal to the amount the affiliate would have been\\n\\nliable to pay the IRS had the affiliate filed an individual . . . tax return,” and it in turn\\n\\n“obliges UWBI to pay each affiliate funds equal to the amount of the refund to which\\n\\nthat affiliate would have been entitled had it filed a separate tax return.” Id. at 12-13.\\n\\nFurther, the Trustee argues that “[n]othing in the [Agreement] grants [the Bank] any\\n\\ninterest in any IRS tax refund actually received by UWBI.” Id. at 13. In short, the\\n\\nTrustee argues, the Agreement “creates a debtor-creditor relationship, and the Bank\\n\\nholds only an unsecured claim against the UWBI estate in the amount of funds the\\n\\nBank would have received had it filed a separate tax return.” Id. at 14.\\n\\n\\n\\n 11\\n\\f Standard of review\\n\\n “When hearing an appeal from a district court’s review of a bankruptcy-court\\n\\norder, ‘we independently review the bankruptcy court’s decision, applying the same\\n\\nstandard as the . . . district court.’” In re Peeples, 880 F.3d 1207, 1212 (10th Cir.\\n\\n2018) (quoting In re C.W. Min. Co., 798 F.3d 983, 986 (10th Cir. 2015)). “We\\n\\nreview bankruptcy-court orders granting summary judgment in adversarial\\n\\nproceedings de novo, and affirm if ‘there is no genuine dispute as to any material fact\\n\\nand the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ.\\n\\nP. 56(a)).\\n\\n The scope of UWBI’s bankruptcy estate\\n\\n It is well established that “[f]iling for Chapter 11 [or Chapter 7] bankruptcy\\n\\nhas several relevant legal consequences,” the most important of which, for purposes\\n\\nof this appeal, is that “an estate is created comprising all property of the debtor.”\\n\\nCzyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 978 (2017) (citing 11 U.S.C.\\n\\n§ 541(a)(1)). This includes “all legal or equitable interests of the debtor in property\\n\\nas of the commencement of the [bankruptcy] case.” 11 U.S.C. § 541(a)(1). The\\n\\nestate does not include, however, “[p]roperty in which the debtor holds, as of the\\n\\ncommencement of the [bankruptcy] case, only legal title and not an equitable interest\\n\\n. . . .” 11 U.S.C. § 541(d). Thus, in order for the tax refund to be considered part of\\n\\nUWBI’s estate, UWBI must hold both legal and equitable title to the tax refund.\\n\\n\\n\\n\\n 12\\n\\f The analytical framework for resolving ownership of the tax refund\\n\\n Section 1501 of the Internal Revenue Code (the Code) authorizes an “affiliated\\n\\ngroup” of corporations to “mak[e] a consolidated return with respect to income tax\\n\\n. . . .” 26 U.S.C. § 1501. The Code defines the term “affiliated group” to mean, in\\n\\npertinent part, “1 or more chains of includible corporations connected through stock\\n\\nownership with a common parent corporation which is an includible corporation\\n\\n. . . .” 26 U.S.C. § 1504(a)(1)(A). The Code does not, however, specify what\\n\\nhappens when an affiliated group that has filed a consolidated federal tax return\\n\\nreceives a tax refund. More specifically, the Code is silent with respect to the legal\\n\\nand equitable ownership of such a tax refund.\\n\\n Federal common law, however, provides a framework for resolving this issue.\\n\\nThe general rule in this circuit, as outlined in Barnes v. Harris, 783 F.3d 1185, 1195\\n\\n(10th Cir. 2015), is that “a tax refund due from a joint return generally belongs to the\\n\\ncompany responsible for the losses that form the basis of the refund.” In adopting\\n\\nthis principle, Barnes cited to and effectively adopted the Ninth Circuit’s decision in\\n\\nIn re Bob Richards Chrysler-Plymouth Corp., Inc., 473 F.2d 262, 265 (9th Cir.\\n\\n1973).3\\n\\n\\n\\n\\n 3\\n In Fed. Deposit Ins. Corp. v. AmFin Fin. Corp., 757 F.3d 530 (6th Cir.\\n2014), the Sixth Circuit declined to adopt the Bob Richards rule on the grounds that\\nit “is a creature of federal common law” and that “federal common law constitutes an\\nunusual exercise of lawmaking which should be indulged only in a few restricted\\ninstances.” Id. at 535. Whether or not this is a valid criticism, we are bound by the\\ndecision in Barnes.\\n 13\\n\\f Bob Richards involved facts somewhat similar, but not identical, to those at\\n\\nissue here. Western Dealer Management, Inc. (WDM) was a parent corporation that\\n\\nwholly owned two subsidiary corporations, one of which was Bob Richards Chrysler-\\n\\nPlymouth Corporation, Inc. (Bob Richards). In October 1965, Bob Richards filed a\\n\\npetition in bankruptcy. While that bankruptcy proceeding was pending, WDM filed\\n\\nconsolidated federal income tax returns on behalf of itself and its two subsidiaries for\\n\\nthe tax years 1965 and 1966. Notably, “[t]he return for 1966 showed that the\\n\\nconsolidated group was entitled to a refund of taxes” in the amount of $10,063.25\\n\\nand “[t]he entire refund . . . was due to the earnings history of” Bob Richards. Id. at\\n\\n263. The bankruptcy trustee claimed that the refund belonged to the bankruptcy\\n\\nestate, but WDM claimed a right to the entire tax refund “as a set-off” of a “$45,000\\n\\nunsecured obligation of” Bob Richards. Id.\\n\\n The Ninth Circuit concluded that “[t]he Trustee, not WDM, [wa]s entitled to\\n\\nthe refund.” Id. at 264. In reaching this conclusion, the Ninth Circuit first “note[d]\\n\\nthat at the date of the filing of the petition in bankruptcy, the Trustee acquired any\\n\\ninterest [Bob Richards] had in the carryback tax refund.” Id. The Ninth Circuit in\\n\\nturn noted there was “no evidence that [Bob Richards] or the Trustee at any time\\n\\nvoluntarily assigned its rights in the refund to WDM.” Id. Although the Ninth\\n\\nCircuit acknowledged that Bob Richards “consented to the filing of a consolidated\\n\\ntax return,” it noted that “such consent [could not] be construed to include the\\n\\ntransfer of a valuable asset without further consideration.” Id.\\n\\n\\n\\n 14\\n\\f Relatedly, the Ninth Circuit noted “that there is nothing in the [Internal\\n\\nRevenue] Code or Regulations that compels the conclusion that a tax saving must or\\n\\nshould inure to the benefit of the parent company or of the company which has\\n\\nsustained the loss that makes possible the tax saving.” Id. (quotations and brackets\\n\\nomitted). Thus, the Ninth Circuit noted, the normal rule is that “where there is an\\n\\nexplicit agreement, or where an agreement can fairly be implied, as a matter of state\\n\\ncorporation law the parties are free to adjust among themselves the ultimate tax\\n\\nliability.” Id. In the case before it, however, “the parties made no agreement\\n\\nconcerning the ultimate disposition of the tax refund.” Id. at 265.\\n\\n All of which led the Ninth Circuit to adopt what has since become known as\\n\\n“the Bob Richards rule”:\\n\\n Absent any differing agreement we feel that a tax refund resulting solely\\n from offsetting the losses of one member of a consolidated filing group\\n against the income of that same member in a prior or subsequent year\\n should inure to the benefit of that member. Allowing the parent to keep\\n any refunds arising solely from a subsidiary’s losses simply because the\\n parent and subsidiary chose a procedural device to facilitate their\\n income tax reporting unjustly enriches the parent.\\n\\nId.\\n\\n Applying these principles to the facts before it, the Ninth Circuit emphasized\\n\\nthat “WDM received the tax refund from the government only in its capacity as agent\\n\\nfor the consolidated group.” Id. And because “there [wa]s no express or implied\\n\\nagreement that the agent had any right to keep the refund,” it concluded “that WDM\\n\\nwas acting as a trustee of a specific trust and was under a duty to return the tax\\n\\nrefund to the estate of the bankrupt.” Id.\\n\\n 15\\n\\f The Trustee argues that Barnes and Bob Richards are inapplicable here\\n\\nbecause of the existence of the Agreement. But the Trustee is only partially correct.\\n\\nBarnes, which adopted Bob Richards, clearly applies to this case and outlines the\\n\\ngeneral framework that we must apply in resolving the parties’ dispute. The Trustee\\n\\nis correct, however, that this case differs from Barnes and Bob Richards because\\n\\nthere was a written agreement in place—the Agreement—that discussed the filing of\\n\\na consolidated federal tax return. Consequently, as directed by Barnes and Bob\\n\\nRichards, we must look to the terms of the Agreement and, taking into account\\n\\nColorado case law, decide whether it unambiguously addresses how tax refunds are\\n\\nto be handled and, if so, whether it purports to deviate from the general rule outlined\\n\\nin Barnes and Bob Richards. See generally Barnhill v. Johnson, 503 U.S. 393, 398\\n\\n(1992) (“In the absence of any controlling federal law, ‘property’ and ‘interests in\\n\\nproperty’ are creatures of state law.” (quotations omitted)).\\n\\n What does the Agreement say about tax refunds?\\n\\n As we shall explain, the written terms of the Agreement are, at best,\\n\\nambiguous regarding the nature of the relationship that UWBI and the Bank intended\\n\\nto create with one another. Specifically, certain of its provisions suggest the\\n\\nexistence of an agency relationship, while other provisions suggest the intent to\\n\\ncreate something other than an agency relationship.\\n\\n As noted, Section A.1 of the Agreement, which is contained under the heading\\n\\n“General Rule – Federal,” provides, in pertinent part:\\n\\n\\n\\n 16\\n\\f If a regulated first-tier Affiliate incurs a net operating loss or excess tax\\n credits, the regulated Affiliate is entitled to a refund equal to the amount\\n that it would have been entitled to receive had it not joined in the filing\\n of a consolidated return with UWBI. Similar treatment is optional at\\n UWBI discretion for nonregulated first-tier Affiliates. Any refund shall\\n generally not exceed the amount claimed or received as a refund\\n resulting from a carryback claim filed by UWBI. However, this shall\\n not prevent UWBI from the ability to make a refund over the amount\\n received or claimed as a refund or carryback, if in its sole discretion it\\n believes such payment is in its best interest. Additionally, if part of\\n [sic] all of an unused consolidated net operating loss, net capital loss,\\n tax credit or similar type item is allocated to an Affiliate pursuant to\\n Regulations Section 1.1502-21, and it is carried back, if utilized, or it is\\n carried forward, whether or not utilized, to a year in which such\\n Affiliate filed a separate income tax return or a consolidated federal\\n income tax return with another group, any refund or reduction in tax\\n liability arising from the carryback or carryforward shall be retained by\\n such Affiliate and such item shall not enter into the calculation of\\n liability to or from UWBI.\\n\\nAplt. App., Vol. I at 41.\\n\\n The first of these sentences—stating that “[i]f a regulated first-tier Affiliate,”\\n\\ni.e., the Bank, “incurs a net operating loss or excess tax credits, the regulated\\n\\nAffiliate is entitled to a refund equal to the amount that it would have been entitled to\\n\\nreceive had it not joined in the filing of a consolidated return with USBI”—is\\n\\narguably ambiguous. On the one hand, it purports to “entitle[]” the regulated affiliate\\n\\n“to a refund equal to the amount that it would have received had it not joined in the\\n\\nfiling of a consolidated return.” On the other hand, when contrasted with the last\\n\\nsentence, it does not give the Bank the right to “retain” the refund. Instead, under the\\n\\nfirst sentence, a refund received by UWBI as a result of a net operating loss incurred\\n\\nby the Bank is taken into account by the parties in calculating their year-end\\n\\nliabilities to each other.\\n\\n 17\\n\\f The second and third sentences of Section A.1 afford UWBI with two types of\\n\\ndiscretion: (1) whether to pay any refund at all to a nonregulated affiliate; and (2)\\n\\nwhen it pays a refund to any affiliate, whether to pay an amount equivalent to the\\n\\namount the affiliate would have received had it filed its own income tax return, or\\n\\ninstead to pay a greater amount. These sentences thus arguably point toward\\n\\nsomething more than a mere agency relationship.\\n\\n The last sentence of Section A.1 indicates that if a net operating loss of any\\n\\naffiliate is carried back to a year when that affiliate was filing a separate income tax\\n\\nreturn (or filing a consolidated return with another group), then “any refund . . . shall\\n\\nbe retained by such Affiliate and such item will not enter into the calculation of\\n\\nliability to or from UWBI.” This arguably suggests that, in all other situations, an\\n\\naffiliate does not “retain” a tax refund and, instead, refunds are taken into\\n\\nconsideration during the annual reconciliation of liability between the parties.\\n\\n Section A.2 of the Agreement, which is also contained under the heading\\n\\n“General Rule – Federal,” states: “In essence, this Agreement requires that each first-\\n\\ntier subsidiary be treated as a separate taxpayer with UWBI merely being an\\n\\nintermediary between an Affiliate and the Internal Revenue Service . . . .” Id.\\n\\nAlthough the term “intermediary” is not expressly defined in the Agreement, it is\\n\\ncommonly understood to mean “[a] mediator or go-between.” Intermediary, Black’s\\n\\nLaw Dictionary (10th ed. 2014). Thus, in contrast to most of Section A.1, Section\\n\\nA.2 clearly points to the existence of an agency relationship between UWBI and its\\n\\n\\n\\n 18\\n\\faffiliates, rather than a debtor/creditor relationship. In other words, it suggests that\\n\\nUWBI will simply act as a conduit through which the refund will pass.\\n\\n Section F of the Agreement, entitled “Tax Settlement Payments – Federal and\\n\\nState,” states, in pertinent part, that affiliates are to make “[e]stimated payments of\\n\\nFederal . . . taxes” to UWBI on a specified quarterly basis (April 15, June 15,\\n\\nSeptember 15, and December 15). Id. at 44. Those estimated payments are to be in\\n\\n“an amount equal to the amount of any estimated federal income taxes which the\\n\\nAffiliate would have been required to pay on or before such dates if the Affiliate had\\n\\nfiled its own separate income tax return for such taxable period.” Id. “Payments [by\\n\\nUWBI] to an Affiliate for net operating losses or similar items shall not be made\\n\\nunder this provision, but rather on an annual basis pursuant to Section A” of the\\n\\nAgreement. Id.\\n\\n In turn, Section E of the Agreement, entitled “Tax Settlement Payments –\\n\\nFederal,” provides in pertinent part:\\n\\n 1. Preliminary tax settlement payments are due on or before March 15\\n following the end of the appropriate taxable year. Although\\n overpayments of estimated taxes made by Affiliates are not refunded\\n until final tax settlement is done, an Affiliate with a taxable loss for the\\n year may recover estimated taxes paid for that year before final\\n settlement if an “expedited refund” claim is filed with UWBI by\\n February 15 following the end of the tax year.\\n\\n 2. Each first-tier Affiliate shall compute its final tax settlement liability\\n based on the amounts included for that Affiliate (and its subsidiaries, if\\n applicable) in the consolidated federal income tax return filed. A copy\\n of such computation will be prepared by October 31, and any\\n differences will be resolved. Final tax settlement payments or refunds\\n are due on or before November 15.\\n\\n\\n 19\\n\\fId. at 43-44.\\n\\n Considered together, Sections E and F obligate affiliates to make quarterly\\n\\nestimated tax payments to UWBI during the course of a taxable year, preliminary tax\\n\\nsettlement payments to UWBI on or before March 15th following the end of the\\n\\ntaxable year, and final tax settlement payments, if necessary, to UWBI on or before\\n\\nNovember 15th following the end of the taxable year. In turn, Section E, when\\n\\nconsidered together with Section A, obligates UWBI to (1) refund to its affiliates, by\\n\\nNovember 15th following the end of the taxable year, any overpayments of estimated\\n\\ntaxes, (2) expedite any such refund if an affiliate has a taxable loss for the year in\\n\\nquestion and the affiliate files with UWBI an expedited refund claim by February\\n\\n15th following the end of the taxable year, and (3) ensure that, when a regulated first-\\n\\ntier affiliate incurs a net operating loss or excess tax credits, any such refunds paid to\\n\\nthat affiliate are equal to or greater than the amount that such affiliate would have\\n\\nbeen entitled to receive had it not joined in the filing of the consolidated tax return.\\n\\n Section G of the Agreement states that “[e]ach Affiliate hereby appoints\\n\\nUWBI as its agent . . . for the purpose of filing such consolidated Federal income tax\\n\\nreturns for the UWBI group as UWBI may elect to file and making any election,\\n\\napplication, or taking any action in connection therewith on behalf of the Affiliates.”\\n\\nId. at 44.\\n\\n Lastly, Section H of the Agreement, entitled “Miscellaneous,” contains two\\n\\nrelevant paragraphs. Section H.1 states:\\n\\n\\n\\n 20\\n\\f In the event of any adjustment to the tax returns of the Group as filed\\n (by reason of an amended return, claim for refund, or an audit by a\\n taxing authority), the liability of the parties to this Agreement shall be\\n re-determined to give effect to any such adjustment as if it had been\\n made as part of the original computation of tax liability, and payments\\n between the appropriate parties shall be made within 10 business days\\n after any such payments are made or refunds are received, or, in the\\n case of contested proceedings, within 10 business days after a final\\n determination of the contest.\\n\\nId. Further, Subsection H.4 states, in pertinent part:\\n\\n The intent of this Agreement is to provide an equitable allocation of the\\n tax liability of the Group among UWBI and the Affiliates. Any\\n ambiguity in the interpretation hereof shall be resolved, with a view to\\n effectuating such intent, in favor of any insured depository institution.\\n\\nId. at 45.\\n\\n Considered in its entirety, it is apparent that the Agreement was intended to\\n\\nauthorize the filing of a consolidated tax return and, in turn, to create a series of\\n\\npayment obligations between UWBI and its affiliates—including the Bank—in order\\n\\nto carry out the goal of filing a consolidated tax return. Affiliates are obligated, by\\n\\nway of both estimated and final tax payments, to pay UWBI the precise amount of\\n\\ntheir federal income tax obligations. UWBI, in turn, is obligated to refund to its\\n\\naffiliates any overpayments of estimated taxes. When an affiliate incurs a taxable\\n\\nloss due to net operating losses or excess tax credits, UWBI’s obligations depend\\n\\nupon the nature of the affiliate. If the affiliate is a regulated, first-tier affiliate such\\n\\nas the Bank, then UWBI is obligated to pay that affiliate “a refund equal to” or\\n\\ngreater than “the amount that it would have been entitled to receive had it not joined\\n\\nin the filing of a consolidated return with UWBI.” Id. at 41 (§ A.1 of the\\n\\n\\n 21\\n\\fAgreement). For “nonregulated first-tier Affiliates,” UWBI has the discretion to\\n\\ndecide whether or not to treat them similarly to regulated first-tier affiliates in terms\\n\\nof tax refunds. Id.\\n\\n Critically, however, the Agreement is, on its face, ambiguous with respect to\\n\\nthe type of relationship it intends to create between UWBI and regulated, first-tier\\n\\naffiliates, such as the Bank, regarding the ownership of refunds from the IRS. 4 See\\n\\nPinnacol Assurance v. Hoff, 375 P.3d 1214, 1229 (Colo. 2016) (noting that a contract\\n\\nis ambiguous if it is reasonably susceptible of more than one meaning); id. (“Whether\\n\\na written contract is ambiguous is a question of law that we review de novo.”). On\\n\\nthe one hand, portions of the Agreement quite clearly indicate the intent to create an\\n\\nagency relationship between UWBI and its regulated, first-tier affiliates. For\\n\\nexample, Section A.2 states that “each first-tier subsidiary [is to] be treated as a\\n\\nseparate taxpayer with UWBI merely being an intermediary between an Affiliate and\\n\\nthe” IRS. Aplt. App., Vol. I at 41. Likewise, Section G states that UWBI is being\\n\\nappointed by each affiliate to act as its agent for purposes of filing the consolidated\\n\\ntax return and taking any action in connection therewith. On the other hand, portions\\n\\nof the Agreement arguably suggest the intent for UWBI to retain tax refunds before\\n\\nforwarding them on to regulated, first-tier affiliates. For example, parts of Section\\n\\n\\n 4\\n Rodriguez argues the FDIC has waived any argument that the Agreement is\\nambiguous. We reject that argument. The FDIC has consistently argued the\\nAgreement creates an agency relationship, rather than a debtor/creditor relationship.\\nThe FDIC has also consistently argued that any ambiguity in the Agreement must be\\nresolved in the Bank’s favor. Aplt. App., Vol. I at 89, 237; Vol. III at 423, 434, 452,\\n453, 500, 520-21.\\n 22\\n\\fA.1 imply that UWBI will retain tax refunds and then later take them into account\\n\\nduring the annual settlement process. In addition, the fact that Section A.1 affords\\n\\nUWBI with discretion regarding the amount to refund a regulated, first-tier affiliate\\n\\n(i.e, the exact amount of the refund or a greater amount) seems to suggest something\\n\\nother than an agency relationship. Finally, the ambiguity of the Agreement on this\\n\\nissue is compounded by the fact that it contains no language requiring UWBI to\\n\\nutilize a trust or escrow for tax refunds—which would suggest the existence of an\\n\\nagency or trust relationship—nor does it contain provisions for interest and\\n\\ncollateral—which would be indicative of a debtor-creditor relationship. See In re\\n\\nNetBank, Inc., 729 F.3d 1344, 1351 (11th Cir. 2013); Fed. Deposit Ins. Corp. v.\\n\\nAmFin Fin. Corp., 757 F.3d 530, 535 (6th Cir. 2014).\\n\\n Resolving the Agreement’s ambiguity\\n\\n Notably, the Agreement itself provides a method for resolving the ambiguity.\\n\\nSection H.4 of the Agreement states that “[a]ny ambiguity in the interpretation hereof\\n\\nshall be resolved, with a view to effectuating such intent [i.e., to provide an equitable\\n\\nallocation of the tax liability of the Group among UWBI and the Affiliates], in favor\\n\\nof any insured depository institution.” Aplt. App., Vol. I at 45. Quite clearly,\\n\\nconstruing the Agreement to create an agency relationship between UWBI and the\\n\\nBank with respect to federal tax refunds—and thereby affording ownership of the tax\\n\\nrefund to the Bank—is more favorable to the Bank than construing the Agreement to\\n\\ncreate a debtor/creditor relationship and thus affording ownership of federal tax\\n\\nrefunds to UWBI. We therefore conclude that the ambiguity in the Agreement must\\n\\n 23\\n\\fbe construed in favor of the Bank and the FDIC, and that, consequently, the\\n\\nAgreement must be read as creating only an agency relationship between UWBI and\\n\\nthe Bank.\\n\\n Conclusion\\n\\n In sum, we conclude that the Agreement creates an agency relationship\\n\\nbetween UWBI and the Bank and that, consequently, the Agreement’s intended\\n\\ntreatment of tax refunds does not differ from the general rule outlined in Barnes and\\n\\nBob Richards. Therefore, we conclude that the tax refund at issue belongs to the\\n\\nBank, and that the FDIC, as receiver for the Bank, was entitled to summary judgment\\n\\nin its favor.\\n\\n III\\n\\n We AFFIRM the judgment of the district court and REMAND to the\\n\\nbankruptcy court for further proceedings consistent with this opinion.\\n\\n\\n\\n\\n 24\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4362779/\", \"author_raw\": \"BRISCOE, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"BRISCOE"},"judge2":{"kind":"string","value":"SEYMOUR"},"judge3":{"kind":"string","value":"HOLMES"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4585526/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: In RE: UNITED WESTERN BANCORP, INC., Debtor. Simon E. Rodriguez, in His Capacity as Chapter 7 Trustee for the Bankruptcy Estate of United Western Bancorp, Inc., Plaintiff - Appellant, v. Federal Deposit Insurance Corporation, in Its Capacity as Receiver for United Western Bank, Defendant - Appellee.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 29, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n In re: UNITED WESTERN BANCORP,\n INC.,\n\n Debtor.\n\n ------------------------------\n\n SIMON E. RODRIGUEZ, in his capacity\n as Chapter 7 Trustee for the bankruptcy\n estate of United Western Bancorp, Inc.,\n\n Plaintiff - Appellant,\n\n v. No. 17-1281\n (D.C. No. 1:16-CV-02475-WJM)\n FEDERAL DEPOSIT INSURANCE (D. Colo.)\n CORPORATION, in its capacity as\n Receiver for United Western Bank,\n\n Defendant - Appellee.\n _________________________________\n\n ORDER\n _________________________________\n\nBefore BRISCOE, SEYMOUR, and HOLMES, Circuit Judges.\n _________________________________\n\n This matter is before the court on the appellant’s Petition for Panel Rehearing and\n\nMotion for Clarification. Upon consideration, the request for panel rehearing is granted in\n\npart and to the limited extent that footnote 3 of the original Opinion will be deleted. The\n\nPetition is otherwise denied, as is the motion to clarify. A copy of the revised version is\n\fattached to this order. The clerk is directed to file the amended version of the Opinion\n\neffective the date of this order.\n\n\n Entered for the Court\n\n\n\n ELISABETH A. SHUMAKER, Clerk\n\n\n\n\n 2\n\f FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS January 29, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n In re: UNITED WESTERN BANCORP,\n INC.,\n\n Debtor.\n\n ------------------------------\n\n SIMON E. RODRIGUEZ, in his capacity\n as Chapter 7 Trustee for the bankruptcy\n estate of United Western Bancorp, Inc.,\n\n Plaintiff - Appellant,\n\n v. No. 17-1281\n\n FEDERAL DEPOSIT INSURANCE\n CORPORATION, in its capacity as\n Receiver for United Western Bank,\n\n Defendant - Appellee.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Colorado\n (D.C. No. 1:16-CV-02475-WJM)\n _________________________________\n\nMark E. Haynes (Michael M. Lane, with him on the briefs), Ireland Stapleton Pryor &\nPascoe, P.C., Denver, Colorado, appearing for Appellant.\n\nJoseph Brooks, Counsel (Colleen J. Boles, Assistant General Counsel, Kathryn R.\nNorcross, Senior Counsel, and Michelle Ognibene, Counsel, on the brief), Federal\nDeposit Insurance Corporation, Appellate Litigation, Arlington, Virginia, appearing for\nAppellees.\n _________________________________\n\fBefore BRISCOE, SEYMOUR, and HOLMES, Circuit Judges.\n _________________________________\n\nBRISCOE, Circuit Judge.\n _________________________________\n\n This appeal, which arises out of a bankruptcy adversary proceeding, concerns\n\nthe ownership of a federal tax refund. The tax refund was issued by the Internal\n\nRevenue Service (IRS) to United Western Bancorp, Inc. (UWBI), a thrift holding\n\ncompany that had, under the terms of a written “Tax Allocation Agreement,” filed\n\nconsolidated returns on behalf of itself and several subsidiary corporations. The tax\n\nrefund was the result, however, of net operating losses incurred by United Western\n\nBank (the Bank), one of UWBI’s subsidiaries.\n\n Simon Rodriguez, in his capacity as the Chapter 7 Trustee for the bankruptcy\n\nestate of UWBI, initiated this adversary proceeding against the Federal Deposit\n\nInsurance Corporation (FDIC), as receiver for the Bank, alleging that the tax refund\n\nwas owned by UWBI and was thus part of the bankruptcy estate. The bankruptcy\n\ncourt agreed and entered summary judgment in favor of the Trustee. The FDIC\n\nappealed to the district court, which reversed the decision of the bankruptcy court.\n\nThe Trustee now appeals from the district court’s decision.\n\n Exercising jurisdiction pursuant to 28 U.S.C. § 158(d)(1), we agree with the\n\ndistrict court that the tax refund belongs to the FDIC, as receiver for the Bank.\n\nConsequently, we affirm the judgment of the district court and remand to the\n\nbankruptcy court for further proceedings.\n\n\n\n 2\n\f I\n\n a) UWBI and its affiliates\n\n UWBI is a Colorado corporation and a “unitary thrift [or bank] holding\n\ncompany.” Aplt. App., Vol. I at 41. UWBI owned several affiliate subsidiaries,\n\nincluding the Bank. The Bank, UWBI’s principal subsidiary, was headquartered in\n\nDenver and operated a community-based banking network that was comprised of\n\neight banking locations and a loan servicing office.\n\n b) The Tax Allocation Agreement\n\n UWBI’s affiliate subsidiaries were “members of an affiliated group . . . within\n\nthe meaning of Section 1504(a) of the Internal Revenue Code of 1986.” Id. at 41;\n\nsee 26 U.S.C. § 1504(a). Beginning in 2004 and continuing thereafter, the affiliated\n\ngroup “file[d] . . . consolidated federal income tax returns.” Aplt. App., Vol. I at 41.\n\n On January 1, 2008, UWBI and its affiliate subsidiaries entered into a Tax\n\nAllocation Agreement (the Agreement).1 The Agreement’s preamble noted that the\n\naffiliates had previously filed, and intended to continue to file, “consolidated federal\n\nincome tax return[s].” Id. The preamble further stated that “UWBI and the Affiliates\n\ndesire[d] to establish a method for (i) allocating the consolidated tax liability of the\n\nGroup among its members, (ii) reimbursing UWBI for the payment of such tax\n\nliability, and (iii) compensating each member of the Group for the use of its losses by\n\nany other member of the Group.” Id.\n\n\n 1\n Prior to 2008, UWBI and its affiliates had filed taxes under similar, but not\nidentical, written agreements. Aplt. App., Vol. I at 182.\n 3\n\f The Agreement in turn, under Section A, entitled “General Rule – Federal,”\n\noutlined how federal tax payments would be made:\n\n 1. Except as specifically set forth herein to the contrary, each\n Affiliate shall pay UWBI an amount equal to the federal income tax\n liability such Affiliate would have incurred were it to file a separate\n return (or, if appropriate, a consolidated return with its subsidiary\n affiliates). If a regulated first-tier Affiliate incurs a net operating loss or\n excess tax credits, the regulated Affiliate is entitled to a refund equal to\n the amount that it would have been entitled to receive had it not joined\n in the filing of a consolidated return with UWBI. Similar treatment is\n optional at UWBI discretion for nonregulated first-tier Affiliates. Any\n refund shall generally not exceed the amount claimed or received as a\n refund resulting from a carryback claim filed by UWBI. However, this\n shall not prevent UWBI from the ability to make a refund over the\n amount received or claimed as a refund or carryback, if in its sole\n discretion it believes such payment is in its best interest. Additionally,\n if part of [sic] all of an unused consolidated net operating loss, net\n capital loss, tax credit or similar type item is allocated to an Affiliate\n pursuant to Regulations Section 1.1502-21, and it is carried back, if\n utilized, or it is carried forward, whether or not utilized, to a year in\n which such Affiliate filed a separate income tax return or a consolidated\n federal income tax return with another group, any refund or reduction in\n tax liability arising from the carryback or carryforward shall be retained\n by such Affiliate and such item shall not enter into the calculation of\n liability to or from UWBI.\n\n 2. In essence, this Agreement requires that each first-tier\n subsidiary be treated as a separate taxpayer with UWBI merely being an\n intermediary between an Affiliate and the Internal Revenue Service\n (“IRS”).\n\nId. The Agreement also, in Section C, included “specific policies designed to cover\n\ncertain factual scenarios” including, for example, “[c]haritable contributions.” Id. at\n\n42.\n\n Section G of the Agreement stated that “[e]ach Affiliate hereby appoints\n\nUWBI as its agent, as long as such Affiliate is a member of the UWBI group, for the\n\n\n 4\n\fpurpose of filing such consolidated Federal income tax returns for the UWBI group\n\nas UWBI may elect to file and making any election, application or taking any action\n\nin connection therewith on behalf of the Affiliates.” Id. at 44. Each affiliate also,\n\nunder Section G, “consent[ed] to the filing of any such returns and the making of any\n\nsuch elections and applications.” Id.\n\n Under Section H, entitled “Miscellaneous,” the Agreement contained a\n\nprovision regarding refunds from the IRS:\n\n In the event of any adjustment to the tax returns of the Group as filed\n (by reason of an amended return, claim for refund, or an audit by a\n taxing authority), the liability of the parties to this Agreement shall be\n re-determined to give effect to any such adjustment as if it had been\n made as part of the original computation of tax liability, and payments\n between the appropriate parties shall be made within 10 business days\n after any such payments are made or refunds are received, or, in the\n case of contested proceedings, within 10 business days after a final\n determination of the contest.\n\nId. (quoting § H.1).\n\n Also under Section H, the Agreement stated, in pertinent part:\n\n The intent of this Agreement is to provide an equitable allocation of the\n tax liability of the Group among UWBI and the Affiliates. Any\n ambiguity in the interpretation hereof shall be resolved, with a view to\n effectuating such intent, in favor of any insured depository institution.\n\nId. at 45 (quoting § H.4).\n\n c) UWBI’s filing of federal tax returns on behalf of the group\n\n UWBI proceeded, in accordance with the terms of the Agreement, to file\n\nfederal income tax returns for the consolidated group. In doing so, “the tax liabilities\n\n\n\n\n 5\n\fand tax benefits” were computed “on a separate-entity basis for each Affiliate,” but\n\nUWBI ultimately filed one tax return “on a consolidated basis.” Id. at 82.\n\n For the tax year 2008, UWBI filed a federal income tax return for the affiliated\n\ngroup and reported that the Bank generated $34,397,709 in taxable income. The\n\nreturn indicated that UWBI itself did not generate taxable income in 2008.\n\n In 2010, the Bank suffered at least $35,351,690 in losses. Based upon the\n\nBank’s 2010 net operating losses, UWBI, at some point in 2011, filed on behalf of\n\nthe affiliated group a tax refund request of $4,846,625 to recover a portion of the\n\ntaxes paid by the Bank on its 2008 taxable income.2\n\n d) Appointment of the FDIC as receiver for the Bank\n\n The Bank was a federally chartered savings and loan association. On January\n\n21, 2011, the Office of Thrift Supervision (OTS) closed the Bank and appointed the\n\nFederal Deposit Insurance Corporation (FDIC) as receiver. Shortly thereafter, the\n\nFDIC notified the IRS of these events.\n\n e) UWBI’s bankruptcy proceedings\n\n Because the Bank was UWBI’s principal, if not sole, source of income, the\n\nBank’s receivership resulted in UWBI becoming insolvent. On March 2, 2012,\n\nUWBI filed a petition for Chapter 11 bankruptcy. As of that date, the tax refund\n\nrequest that UWBI filed in 2011 was still pending before the IRS.\n\n\n\n\n 2\n The Internal Revenue Code permits corporations to “carryback” net operating\nlosses for up to two taxable years. See 26 U.S.C. § 172.\n 6\n\f On August 30, 2012, the FDIC filed a proof of claim in UWBI’s bankruptcy\n\ncase in the aggregate amount of $4,847,000. The FDIC alleged that, as receiver for\n\nthe Bank, it was entitled to the federal tax refund that was due and owing from the\n\nIRS to the affiliate group because the refund stemmed exclusively from the Bank’s\n\nbusiness loss carrybacks. The FDIC also alleged that its claim covered “potential\n\nfraudulent transfers or unlawful dividends, unearned insurance premiums to the\n\nextent that the source of the premium payments was the Bank, insurance proceeds\n\npaid under applicable insurance coverage for any such losses, and other protective\n\nclaims.” Id. at 62.\n\n The bankruptcy case was converted to a Chapter 7 proceeding on April 15,\n\n2013. Rodriguez was appointed as the Chapter 7 trustee for the bankruptcy estate.\n\n f) The adversary proceeding\n\n On April 16, 2014, the Trustee initiated this adversary proceeding by filing a\n\ncomplaint against the FDIC asserting three claims: (1) a claim for declaratory relief\n\nin the form of a determination that the tax refund was the property of the debtor\n\nrather than the FDIC, (2) a claim for turnover of the tax refund, pursuant to 11 U.S.C.\n\n§ 542, to the extent the FDIC possessed the tax refund, and (3) an objection to the\n\nFDIC’s proof of claim. The bankruptcy court subsequently authorized the tax refund\n\nto be deposited into the court’s registry. On November 25, 2014, the FDIC filed a\n\ncounterclaim alleging that the FDIC, as the receiver for and successor to the Bank,\n\nowned the tax refund.\n\n\n\n 7\n\f On October 30, 2015, the parties filed cross motions for summary judgment.\n\nThe FDIC argued that there was “no provision in the . . . Agreement that transfers\n\nownership of the Bank-generated tax refunds to [UWBI], indicates that the Bank\n\nintended to transfer beneficial ownership of the tax refunds to [UWBI], or otherwise\n\nalters the widely recognized default rule regarding ownership of tax refunds by the\n\nentity in a consolidated tax group that generated those tax refunds.” Aplt. App., Vol.\n\nI at 78. The FDIC also argued that “[e]ven if the anticipated tax refund is paid to\n\n[UWBI], [UWBI] acts as agent for the Affiliated Group and, therefore, would only\n\nhold bare legal title in the tax refund.” Id. The Trustee argued, in contrast, that the\n\nAgreement “establishe[d] a debtor-creditor relationship between [UWBI] and the\n\nBank with respect to any tax refunds” and that “[i]f and when the Refund [wa]s paid\n\nto UWBI the funds w[ould] therefore become property of the [bankruptcy] Estate and\n\n[the FDIC] w[ould] have an unsecured, nonpriority claim for its pro rata share.” Id.\n\nat 178.\n\n In 2015, the IRS, after completing an audit, issued a refund in the amount of\n\n$4,081,334.67.\n\n On September 16, 2016, the bankruptcy court issued an opinion and order\n\ngranting summary judgment in favor of the Trustee and denying the FDIC’s motion\n\nfor summary judgment. In doing so, the bankruptcy court began by noting that 11\n\nU.S.C. § 541 outlines the creation of a bankruptcy estate and provides, in pertinent\n\npart, that the estate includes “‘all legal or equitable interests of the debtor in property\n\nas of the commencement of the case . . . wherever located and by whomever held.’”\n\n 8\n\fAplt. App., Vol. II at 382 (quoting § 541(a)). The bankruptcy court also noted that\n\n“[a] long line of bankruptcy cases (even pre-dating the modern Bankruptcy Code)\n\ndictate that if a debtor owns or is entitled to a federal loss carryback tax refund, such\n\nrefund generally becomes property of the debtor’s bankruptcy estate.” Id. at 383.\n\n The bankruptcy court concluded that the Agreement, “the Internal Revenue\n\nCode, and the IRS regulations all dictate that [UWBI], as the bank holding company\n\nfor the Affiliated Group has at least bare legal title to the Tax Refund.” Id. at 386\n\n(emphasis in original). “After all,” the bankruptcy court noted, “26 C.F.R. § 1.1502-\n\n77(d)(5) requires that the Tax Refund be made ‘directly to and in the name of’\n\n[UWBI].” Id.\n\n The bankruptcy court in turn concluded that the FDIC failed to establish that\n\nthe Bank had equitable ownership of the Tax Refund. In support of this conclusion,\n\nthe bankruptcy court noted that “neither the Internal Revenue Code nor the IRS\n\nregulations establish which entity, [UWBI] or the Bank, has equitable or beneficial\n\nownership of the Tax Refund.” Id.\n\n The bankruptcy court also determined that the Agreement created a debtor-\n\ncreditor relationship between UWBI and the Bank with respect to the tax refund. In\n\nparticular, the bankruptcy court concluded that the Agreement (a) “created fungible\n\npayment obligations through an intercompany account of payments and\n\nreimbursements” that indicated “the parties were creating a debtor-creditor\n\nrelationship,” (b) contains no escrow, segregation, or use restrictions regarding what\n\nUWBI can or cannot do when it receives a tax refund from the IRS, and (c) delegates\n\n 9\n\fdecision-making on tax matters to UWBI. Id. at 390. Consequently, the bankruptcy\n\ncourt concluded that UWBI was “the beneficial owner of the Tax Refunds,” and thus\n\nthe Tax Refund “belong[ed] to the Trustee (as Trustee of the [UWBI] bankruptcy\n\nestate).” Id.\n\n Based upon these conclusions, the bankruptcy court determined “that the\n\nTrustee [wa]s entitled to the Tax Refund.” Id. at 400. The bankruptcy court\n\nemphasized that this “d[id] not leave the FDIC without a remedy” because it was\n\n“still a general unsecured creditor of the [UWBI] bankruptcy estate and [could] share\n\npari passu with any other allowed general unsecured claims.” Id. at 400-01.\n\n The bankruptcy court entered judgment in the adversary proceeding on\n\nSeptember 16, 2016.\n\n g) The district court’s decision\n\n The FDIC appealed and, on July 10, 2017, the district court issued an order\n\nreversing the judgment of the bankruptcy court. The district court concluded, in\n\npertinent part, that the Agreement was “ambiguous regarding whether [UWBI] may\n\nkeep the tax refund in the present circumstances” and “that any ambiguity [should] be\n\nconstrued in favor of the Bank.” Aplt. App., Vol. III at 529. The district court noted\n\nthat the plain language of Section A.2 of the Agreement “declare[d] that the purpose\n\nof the [Agreement] is to set up an arrangement in which [UWBI] acts as nothing\n\nmore than a go-between, as between the subsidiaries and the IRS.” Id. at 552. The\n\ndistrict court also concluded that Section H.4 of the Agreement required it to construe\n\nany ambiguities in favor of the Bank and that, consequently, it was required to\n\n 10\n\finterpret the Agreement as requiring UWBI “to act as agent on behalf of the Bank in\n\nobtaining and remitting the refund.” Id. at 559. Accordingly, the district court\n\nconcluded that UWBI “held no more than legal title to the Refund, while the Bank\n\nheld equitable title,” and thus “[t]he Refund [wa]s not part of [UWBI’s] bankruptcy\n\nestate.” Id. at 560.\n\n The Trustee now appeals from the district court’s decision.\n\n II\n\n The Trustee’s arguments on appeal\n\n The Trustee argues that under “[t]he plain language” of the Agreement,\n\n“UWBI holds equitable title to the Tax Refund, and thus . . . the Refund is property\n\nof the UWBI estate.” Aplt. Br. at 12. In support, the Trustee asserts that the\n\nAgreement “imposes two reciprocal obligations.” Id. He contends that “[i]t requires\n\neach affiliate to pay to UWBI funds equal to the amount the affiliate would have been\n\nliable to pay the IRS had the affiliate filed an individual . . . tax return,” and it in turn\n\n“obliges UWBI to pay each affiliate funds equal to the amount of the refund to which\n\nthat affiliate would have been entitled had it filed a separate tax return.” Id. at 12-13.\n\nFurther, the Trustee argues that “[n]othing in the [Agreement] grants [the Bank] any\n\ninterest in any IRS tax refund actually received by UWBI.” Id. at 13. In short, the\n\nTrustee argues, the Agreement “creates a debtor-creditor relationship, and the Bank\n\nholds only an unsecured claim against the UWBI estate in the amount of funds the\n\nBank would have received had it filed a separate tax return.” Id. at 14.\n\n\n\n 11\n\f Standard of review\n\n “When hearing an appeal from a district court’s review of a bankruptcy-court\n\norder, ‘we independently review the bankruptcy court’s decision, applying the same\n\nstandard as the . . . district court.’” In re Peeples, 880 F.3d 1207, 1212 (10th Cir.\n\n2018) (quoting In re C.W. Min. Co., 798 F.3d 983, 986 (10th Cir. 2015)). “We\n\nreview bankruptcy-court orders granting summary judgment in adversarial\n\nproceedings de novo, and affirm if ‘there is no genuine dispute as to any material fact\n\nand the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ.\n\nP. 56(a)).\n\n The scope of UWBI’s bankruptcy estate\n\n It is well established that “[f]iling for Chapter 11 [or Chapter 7] bankruptcy\n\nhas several relevant legal consequences,” the most important of which, for purposes\n\nof this appeal, is that “an estate is created comprising all property of the debtor.”\n\nCzyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 978 (2017) (citing 11 U.S.C.\n\n§ 541(a)(1)). This includes “all legal or equitable interests of the debtor in property\n\nas of the commencement of the [bankruptcy] case.” 11 U.S.C. § 541(a)(1). The\n\nestate does not include, however, “[p]roperty in which the debtor holds, as of the\n\ncommencement of the [bankruptcy] case, only legal title and not an equitable interest\n\n. . . .” 11 U.S.C. § 541(d). Thus, in order for the tax refund to be considered part of\n\nUWBI’s estate, UWBI must hold both legal and equitable title to the tax refund.\n\n\n\n\n 12\n\f The analytical framework for resolving ownership of the tax refund\n\n Section 1501 of the Internal Revenue Code (the Code) authorizes an “affiliated\n\ngroup” of corporations to “mak[e] a consolidated return with respect to income tax\n\n. . . .” 26 U.S.C. § 1501. The Code defines the term “affiliated group” to mean, in\n\npertinent part, “1 or more chains of includible corporations connected through stock\n\nownership with a common parent corporation which is an includible corporation\n\n. . . .” 26 U.S.C. § 1504(a)(1)(A). The Code does not, however, specify what\n\nhappens when an affiliated group that has filed a consolidated federal tax return\n\nreceives a tax refund. More specifically, the Code is silent with respect to the legal\n\nand equitable ownership of such a tax refund.\n\n Federal common law, however, provides a framework for resolving this issue.\n\nThe general rule in this circuit, as outlined in Barnes v. Harris, 783 F.3d 1185, 1195\n\n(10th Cir. 2015), is that “a tax refund due from a joint return generally belongs to the\n\ncompany responsible for the losses that form the basis of the refund.” In adopting\n\nthis principle, Barnes cited to and effectively adopted the Ninth Circuit’s decision in\n\nIn re Bob Richards Chrysler-Plymouth Corp., Inc., 473 F.2d 262, 265 (9th Cir.\n\n1973).3\n\n\n\n\n 3\n In Fed. Deposit Ins. Corp. v. AmFin Fin. Corp., 757 F.3d 530 (6th Cir.\n2014), the Sixth Circuit declined to adopt the Bob Richards rule on the grounds that\nit “is a creature of federal common law” and that “federal common law constitutes an\nunusual exercise of lawmaking which should be indulged only in a few restricted\ninstances.” Id. at 535. Whether or not this is a valid criticism, we are bound by the\ndecision in Barnes.\n 13\n\f Bob Richards involved facts somewhat similar, but not identical, to those at\n\nissue here. Western Dealer Management, Inc. (WDM) was a parent corporation that\n\nwholly owned two subsidiary corporations, one of which was Bob Richards Chrysler-\n\nPlymouth Corporation, Inc. (Bob Richards). In October 1965, Bob Richards filed a\n\npetition in bankruptcy. While that bankruptcy proceeding was pending, WDM filed\n\nconsolidated federal income tax returns on behalf of itself and its two subsidiaries for\n\nthe tax years 1965 and 1966. Notably, “[t]he return for 1966 showed that the\n\nconsolidated group was entitled to a refund of taxes” in the amount of $10,063.25\n\nand “[t]he entire refund . . . was due to the earnings history of” Bob Richards. Id. at\n\n263. The bankruptcy trustee claimed that the refund belonged to the bankruptcy\n\nestate, but WDM claimed a right to the entire tax refund “as a set-off” of a “$45,000\n\nunsecured obligation of” Bob Richards. Id.\n\n The Ninth Circuit concluded that “[t]he Trustee, not WDM, [wa]s entitled to\n\nthe refund.” Id. at 264. In reaching this conclusion, the Ninth Circuit first “note[d]\n\nthat at the date of the filing of the petition in bankruptcy, the Trustee acquired any\n\ninterest [Bob Richards] had in the carryback tax refund.” Id. The Ninth Circuit in\n\nturn noted there was “no evidence that [Bob Richards] or the Trustee at any time\n\nvoluntarily assigned its rights in the refund to WDM.” Id. Although the Ninth\n\nCircuit acknowledged that Bob Richards “consented to the filing of a consolidated\n\ntax return,” it noted that “such consent [could not] be construed to include the\n\ntransfer of a valuable asset without further consideration.” Id.\n\n\n\n 14\n\f Relatedly, the Ninth Circuit noted “that there is nothing in the [Internal\n\nRevenue] Code or Regulations that compels the conclusion that a tax saving must or\n\nshould inure to the benefit of the parent company or of the company which has\n\nsustained the loss that makes possible the tax saving.” Id. (quotations and brackets\n\nomitted). Thus, the Ninth Circuit noted, the normal rule is that “where there is an\n\nexplicit agreement, or where an agreement can fairly be implied, as a matter of state\n\ncorporation law the parties are free to adjust among themselves the ultimate tax\n\nliability.” Id. In the case before it, however, “the parties made no agreement\n\nconcerning the ultimate disposition of the tax refund.” Id. at 265.\n\n All of which led the Ninth Circuit to adopt what has since become known as\n\n“the Bob Richards rule”:\n\n Absent any differing agreement we feel that a tax refund resulting solely\n from offsetting the losses of one member of a consolidated filing group\n against the income of that same member in a prior or subsequent year\n should inure to the benefit of that member. Allowing the parent to keep\n any refunds arising solely from a subsidiary’s losses simply because the\n parent and subsidiary chose a procedural device to facilitate their\n income tax reporting unjustly enriches the parent.\n\nId.\n\n Applying these principles to the facts before it, the Ninth Circuit emphasized\n\nthat “WDM received the tax refund from the government only in its capacity as agent\n\nfor the consolidated group.” Id. And because “there [wa]s no express or implied\n\nagreement that the agent had any right to keep the refund,” it concluded “that WDM\n\nwas acting as a trustee of a specific trust and was under a duty to return the tax\n\nrefund to the estate of the bankrupt.” Id.\n\n 15\n\f The Trustee argues that Barnes and Bob Richards are inapplicable here\n\nbecause of the existence of the Agreement. But the Trustee is only partially correct.\n\nBarnes, which adopted Bob Richards, clearly applies to this case and outlines the\n\ngeneral framework that we must apply in resolving the parties’ dispute. The Trustee\n\nis correct, however, that this case differs from Barnes and Bob Richards because\n\nthere was a written agreement in place—the Agreement—that discussed the filing of\n\na consolidated federal tax return. Consequently, as directed by Barnes and Bob\n\nRichards, we must look to the terms of the Agreement and, taking into account\n\nColorado case law, decide whether it unambiguously addresses how tax refunds are\n\nto be handled and, if so, whether it purports to deviate from the general rule outlined\n\nin Barnes and Bob Richards. See generally Barnhill v. Johnson, 503 U.S. 393, 398\n\n(1992) (“In the absence of any controlling federal law, ‘property’ and ‘interests in\n\nproperty’ are creatures of state law.” (quotations omitted)).\n\n What does the Agreement say about tax refunds?\n\n As we shall explain, the written terms of the Agreement are, at best,\n\nambiguous regarding the nature of the relationship that UWBI and the Bank intended\n\nto create with one another. Specifically, certain of its provisions suggest the\n\nexistence of an agency relationship, while other provisions suggest the intent to\n\ncreate something other than an agency relationship.\n\n As noted, Section A.1 of the Agreement, which is contained under the heading\n\n“General Rule – Federal,” provides, in pertinent part:\n\n\n\n 16\n\f If a regulated first-tier Affiliate incurs a net operating loss or excess tax\n credits, the regulated Affiliate is entitled to a refund equal to the amount\n that it would have been entitled to receive had it not joined in the filing\n of a consolidated return with UWBI. Similar treatment is optional at\n UWBI discretion for nonregulated first-tier Affiliates. Any refund shall\n generally not exceed the amount claimed or received as a refund\n resulting from a carryback claim filed by UWBI. However, this shall\n not prevent UWBI from the ability to make a refund over the amount\n received or claimed as a refund or carryback, if in its sole discretion it\n believes such payment is in its best interest. Additionally, if part of\n [sic] all of an unused consolidated net operating loss, net capital loss,\n tax credit or similar type item is allocated to an Affiliate pursuant to\n Regulations Section 1.1502-21, and it is carried back, if utilized, or it is\n carried forward, whether or not utilized, to a year in which such\n Affiliate filed a separate income tax return or a consolidated federal\n income tax return with another group, any refund or reduction in tax\n liability arising from the carryback or carryforward shall be retained by\n such Affiliate and such item shall not enter into the calculation of\n liability to or from UWBI.\n\nAplt. App., Vol. I at 41.\n\n The first of these sentences—stating that “[i]f a regulated first-tier Affiliate,”\n\ni.e., the Bank, “incurs a net operating loss or excess tax credits, the regulated\n\nAffiliate is entitled to a refund equal to the amount that it would have been entitled to\n\nreceive had it not joined in the filing of a consolidated return with USBI”—is\n\narguably ambiguous. On the one hand, it purports to “entitle[]” the regulated affiliate\n\n“to a refund equal to the amount that it would have received had it not joined in the\n\nfiling of a consolidated return.” On the other hand, when contrasted with the last\n\nsentence, it does not give the Bank the right to “retain” the refund. Instead, under the\n\nfirst sentence, a refund received by UWBI as a result of a net operating loss incurred\n\nby the Bank is taken into account by the parties in calculating their year-end\n\nliabilities to each other.\n\n 17\n\f The second and third sentences of Section A.1 afford UWBI with two types of\n\ndiscretion: (1) whether to pay any refund at all to a nonregulated affiliate; and (2)\n\nwhen it pays a refund to any affiliate, whether to pay an amount equivalent to the\n\namount the affiliate would have received had it filed its own income tax return, or\n\ninstead to pay a greater amount. These sentences thus arguably point toward\n\nsomething more than a mere agency relationship.\n\n The last sentence of Section A.1 indicates that if a net operating loss of any\n\naffiliate is carried back to a year when that affiliate was filing a separate income tax\n\nreturn (or filing a consolidated return with another group), then “any refund . . . shall\n\nbe retained by such Affiliate and such item will not enter into the calculation of\n\nliability to or from UWBI.” This arguably suggests that, in all other situations, an\n\naffiliate does not “retain” a tax refund and, instead, refunds are taken into\n\nconsideration during the annual reconciliation of liability between the parties.\n\n Section A.2 of the Agreement, which is also contained under the heading\n\n“General Rule – Federal,” states: “In essence, this Agreement requires that each first-\n\ntier subsidiary be treated as a separate taxpayer with UWBI merely being an\n\nintermediary between an Affiliate and the Internal Revenue Service . . . .” Id.\n\nAlthough the term “intermediary” is not expressly defined in the Agreement, it is\n\ncommonly understood to mean “[a] mediator or go-between.” Intermediary, Black’s\n\nLaw Dictionary (10th ed. 2014). Thus, in contrast to most of Section A.1, Section\n\nA.2 clearly points to the existence of an agency relationship between UWBI and its\n\n\n\n 18\n\faffiliates, rather than a debtor/creditor relationship. In other words, it suggests that\n\nUWBI will simply act as a conduit through which the refund will pass.\n\n Section F of the Agreement, entitled “Tax Settlement Payments – Federal and\n\nState,” states, in pertinent part, that affiliates are to make “[e]stimated payments of\n\nFederal . . . taxes” to UWBI on a specified quarterly basis (April 15, June 15,\n\nSeptember 15, and December 15). Id. at 44. Those estimated payments are to be in\n\n“an amount equal to the amount of any estimated federal income taxes which the\n\nAffiliate would have been required to pay on or before such dates if the Affiliate had\n\nfiled its own separate income tax return for such taxable period.” Id. “Payments [by\n\nUWBI] to an Affiliate for net operating losses or similar items shall not be made\n\nunder this provision, but rather on an annual basis pursuant to Section A” of the\n\nAgreement. Id.\n\n In turn, Section E of the Agreement, entitled “Tax Settlement Payments –\n\nFederal,” provides in pertinent part:\n\n 1. Preliminary tax settlement payments are due on or before March 15\n following the end of the appropriate taxable year. Although\n overpayments of estimated taxes made by Affiliates are not refunded\n until final tax settlement is done, an Affiliate with a taxable loss for the\n year may recover estimated taxes paid for that year before final\n settlement if an “expedited refund” claim is filed with UWBI by\n February 15 following the end of the tax year.\n\n 2. Each first-tier Affiliate shall compute its final tax settlement liability\n based on the amounts included for that Affiliate (and its subsidiaries, if\n applicable) in the consolidated federal income tax return filed. A copy\n of such computation will be prepared by October 31, and any\n differences will be resolved. Final tax settlement payments or refunds\n are due on or before November 15.\n\n\n 19\n\fId. at 43-44.\n\n Considered together, Sections E and F obligate affiliates to make quarterly\n\nestimated tax payments to UWBI during the course of a taxable year, preliminary tax\n\nsettlement payments to UWBI on or before March 15th following the end of the\n\ntaxable year, and final tax settlement payments, if necessary, to UWBI on or before\n\nNovember 15th following the end of the taxable year. In turn, Section E, when\n\nconsidered together with Section A, obligates UWBI to (1) refund to its affiliates, by\n\nNovember 15th following the end of the taxable year, any overpayments of estimated\n\ntaxes, (2) expedite any such refund if an affiliate has a taxable loss for the year in\n\nquestion and the affiliate files with UWBI an expedited refund claim by February\n\n15th following the end of the taxable year, and (3) ensure that, when a regulated first-\n\ntier affiliate incurs a net operating loss or excess tax credits, any such refunds paid to\n\nthat affiliate are equal to or greater than the amount that such affiliate would have\n\nbeen entitled to receive had it not joined in the filing of the consolidated tax return.\n\n Section G of the Agreement states that “[e]ach Affiliate hereby appoints\n\nUWBI as its agent . . . for the purpose of filing such consolidated Federal income tax\n\nreturns for the UWBI group as UWBI may elect to file and making any election,\n\napplication, or taking any action in connection therewith on behalf of the Affiliates.”\n\nId. at 44.\n\n Lastly, Section H of the Agreement, entitled “Miscellaneous,” contains two\n\nrelevant paragraphs. Section H.1 states:\n\n\n\n 20\n\f In the event of any adjustment to the tax returns of the Group as filed\n (by reason of an amended return, claim for refund, or an audit by a\n taxing authority), the liability of the parties to this Agreement shall be\n re-determined to give effect to any such adjustment as if it had been\n made as part of the original computation of tax liability, and payments\n between the appropriate parties shall be made within 10 business days\n after any such payments are made or refunds are received, or, in the\n case of contested proceedings, within 10 business days after a final\n determination of the contest.\n\nId. Further, Subsection H.4 states, in pertinent part:\n\n The intent of this Agreement is to provide an equitable allocation of the\n tax liability of the Group among UWBI and the Affiliates. Any\n ambiguity in the interpretation hereof shall be resolved, with a view to\n effectuating such intent, in favor of any insured depository institution.\n\nId. at 45.\n\n Considered in its entirety, it is apparent that the Agreement was intended to\n\nauthorize the filing of a consolidated tax return and, in turn, to create a series of\n\npayment obligations between UWBI and its affiliates—including the Bank—in order\n\nto carry out the goal of filing a consolidated tax return. Affiliates are obligated, by\n\nway of both estimated and final tax payments, to pay UWBI the precise amount of\n\ntheir federal income tax obligations. UWBI, in turn, is obligated to refund to its\n\naffiliates any overpayments of estimated taxes. When an affiliate incurs a taxable\n\nloss due to net operating losses or excess tax credits, UWBI’s obligations depend\n\nupon the nature of the affiliate. If the affiliate is a regulated, first-tier affiliate such\n\nas the Bank, then UWBI is obligated to pay that affiliate “a refund equal to” or\n\ngreater than “the amount that it would have been entitled to receive had it not joined\n\nin the filing of a consolidated return with UWBI.” Id. at 41 (§ A.1 of the\n\n\n 21\n\fAgreement). For “nonregulated first-tier Affiliates,” UWBI has the discretion to\n\ndecide whether or not to treat them similarly to regulated first-tier affiliates in terms\n\nof tax refunds. Id.\n\n Critically, however, the Agreement is, on its face, ambiguous with respect to\n\nthe type of relationship it intends to create between UWBI and regulated, first-tier\n\naffiliates, such as the Bank, regarding the ownership of refunds from the IRS. 4 See\n\nPinnacol Assurance v. Hoff, 375 P.3d 1214, 1229 (Colo. 2016) (noting that a contract\n\nis ambiguous if it is reasonably susceptible of more than one meaning); id. (“Whether\n\na written contract is ambiguous is a question of law that we review de novo.”). On\n\nthe one hand, portions of the Agreement quite clearly indicate the intent to create an\n\nagency relationship between UWBI and its regulated, first-tier affiliates. For\n\nexample, Section A.2 states that “each first-tier subsidiary [is to] be treated as a\n\nseparate taxpayer with UWBI merely being an intermediary between an Affiliate and\n\nthe” IRS. Aplt. App., Vol. I at 41. Likewise, Section G states that UWBI is being\n\nappointed by each affiliate to act as its agent for purposes of filing the consolidated\n\ntax return and taking any action in connection therewith. On the other hand, portions\n\nof the Agreement arguably suggest the intent for UWBI to retain tax refunds before\n\nforwarding them on to regulated, first-tier affiliates. For example, parts of Section\n\n\n 4\n Rodriguez argues the FDIC has waived any argument that the Agreement is\nambiguous. We reject that argument. The FDIC has consistently argued the\nAgreement creates an agency relationship, rather than a debtor/creditor relationship.\nThe FDIC has also consistently argued that any ambiguity in the Agreement must be\nresolved in the Bank’s favor. Aplt. App., Vol. I at 89, 237; Vol. III at 423, 434, 452,\n453, 500, 520-21.\n 22\n\fA.1 imply that UWBI will retain tax refunds and then later take them into account\n\nduring the annual settlement process. In addition, the fact that Section A.1 affords\n\nUWBI with discretion regarding the amount to refund a regulated, first-tier affiliate\n\n(i.e, the exact amount of the refund or a greater amount) seems to suggest something\n\nother than an agency relationship. Finally, the ambiguity of the Agreement on this\n\nissue is compounded by the fact that it contains no language requiring UWBI to\n\nutilize a trust or escrow for tax refunds—which would suggest the existence of an\n\nagency or trust relationship—nor does it contain provisions for interest and\n\ncollateral—which would be indicative of a debtor-creditor relationship. See In re\n\nNetBank, Inc., 729 F.3d 1344, 1351 (11th Cir. 2013); Fed. Deposit Ins. Corp. v.\n\nAmFin Fin. Corp., 757 F.3d 530, 535 (6th Cir. 2014).\n\n Resolving the Agreement’s ambiguity\n\n Notably, the Agreement itself provides a method for resolving the ambiguity.\n\nSection H.4 of the Agreement states that “[a]ny ambiguity in the interpretation hereof\n\nshall be resolved, with a view to effectuating such intent [i.e., to provide an equitable\n\nallocation of the tax liability of the Group among UWBI and the Affiliates], in favor\n\nof any insured depository institution.” Aplt. App., Vol. I at 45. Quite clearly,\n\nconstruing the Agreement to create an agency relationship between UWBI and the\n\nBank with respect to federal tax refunds—and thereby affording ownership of the tax\n\nrefund to the Bank—is more favorable to the Bank than construing the Agreement to\n\ncreate a debtor/creditor relationship and thus affording ownership of federal tax\n\nrefunds to UWBI. We therefore conclude that the ambiguity in the Agreement must\n\n 23\n\fbe construed in favor of the Bank and the FDIC, and that, consequently, the\n\nAgreement must be read as creating only an agency relationship between UWBI and\n\nthe Bank.\n\n Conclusion\n\n In sum, we conclude that the Agreement creates an agency relationship\n\nbetween UWBI and the Bank and that, consequently, the Agreement’s intended\n\ntreatment of tax refunds does not differ from the general rule outlined in Barnes and\n\nBob Richards. Therefore, we conclude that the tax refund at issue belongs to the\n\nBank, and that the FDIC, as receiver for the Bank, was entitled to summary judgment\n\nin its favor.\n\n III\n\n We AFFIRM the judgment of the district court and REMAND to the\n\nbankruptcy court for further proceedings consistent with this opinion.\n\n\n\n\n 24\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: In RE: UNITED WESTERN BANCORP, INC., Debtor. Simon E. Rodriguez, in His Capacity as Chapter 7 Trustee for the Bankruptcy Estate of United Western Bancorp, Inc., Plaintiff - Appellant, v. Federal Deposit Insurance Corporation, in Its Capacity as Receiver for United Western Bank, Defendant - Appellee.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-01-29\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS January 29, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n In re: UNITED WESTERN BANCORP,\\n INC.,\\n\\n Debtor.\\n\\n ------------------------------\\n\\n SIMON E. RODRIGUEZ, in his capacity\\n as Chapter 7 Trustee for the bankruptcy\\n estate of United Western Bancorp, Inc.,\\n\\n Plaintiff - Appellant,\\n\\n v. No. 17-1281\\n (D.C. No. 1:16-CV-02475-WJM)\\n FEDERAL DEPOSIT INSURANCE (D. Colo.)\\n CORPORATION, in its capacity as\\n Receiver for United Western Bank,\\n\\n Defendant - Appellee.\\n _________________________________\\n\\n ORDER\\n _________________________________\\n\\nBefore BRISCOE, SEYMOUR, and HOLMES, Circuit Judges.\\n _________________________________\\n\\n This matter is before the court on the appellant’s Petition for Panel Rehearing and\\n\\nMotion for Clarification. Upon consideration, the request for panel rehearing is granted in\\n\\npart and to the limited extent that footnote 3 of the original Opinion will be deleted. The\\n\\nPetition is otherwise denied, as is the motion to clarify. A copy of the revised version is\\n\\fattached to this order. The clerk is directed to file the amended version of the Opinion\\n\\neffective the date of this order.\\n\\n\\n Entered for the Court\\n\\n\\n\\n ELISABETH A. SHUMAKER, Clerk\\n\\n\\n\\n\\n 2\\n\\f FILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS January 29, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n In re: UNITED WESTERN BANCORP,\\n INC.,\\n\\n Debtor.\\n\\n ------------------------------\\n\\n SIMON E. RODRIGUEZ, in his capacity\\n as Chapter 7 Trustee for the bankruptcy\\n estate of United Western Bancorp, Inc.,\\n\\n Plaintiff - Appellant,\\n\\n v. No. 17-1281\\n\\n FEDERAL DEPOSIT INSURANCE\\n CORPORATION, in its capacity as\\n Receiver for United Western Bank,\\n\\n Defendant - Appellee.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Colorado\\n (D.C. No. 1:16-CV-02475-WJM)\\n _________________________________\\n\\nMark E. Haynes (Michael M. Lane, with him on the briefs), Ireland Stapleton Pryor &\\nPascoe, P.C., Denver, Colorado, appearing for Appellant.\\n\\nJoseph Brooks, Counsel (Colleen J. Boles, Assistant General Counsel, Kathryn R.\\nNorcross, Senior Counsel, and Michelle Ognibene, Counsel, on the brief), Federal\\nDeposit Insurance Corporation, Appellate Litigation, Arlington, Virginia, appearing for\\nAppellees.\\n _________________________________\\n\\fBefore BRISCOE, SEYMOUR, and HOLMES, Circuit Judges.\\n _________________________________\\n\\nBRISCOE, Circuit Judge.\\n _________________________________\\n\\n This appeal, which arises out of a bankruptcy adversary proceeding, concerns\\n\\nthe ownership of a federal tax refund. The tax refund was issued by the Internal\\n\\nRevenue Service (IRS) to United Western Bancorp, Inc. (UWBI), a thrift holding\\n\\ncompany that had, under the terms of a written “Tax Allocation Agreement,” filed\\n\\nconsolidated returns on behalf of itself and several subsidiary corporations. The tax\\n\\nrefund was the result, however, of net operating losses incurred by United Western\\n\\nBank (the Bank), one of UWBI’s subsidiaries.\\n\\n Simon Rodriguez, in his capacity as the Chapter 7 Trustee for the bankruptcy\\n\\nestate of UWBI, initiated this adversary proceeding against the Federal Deposit\\n\\nInsurance Corporation (FDIC), as receiver for the Bank, alleging that the tax refund\\n\\nwas owned by UWBI and was thus part of the bankruptcy estate. The bankruptcy\\n\\ncourt agreed and entered summary judgment in favor of the Trustee. The FDIC\\n\\nappealed to the district court, which reversed the decision of the bankruptcy court.\\n\\nThe Trustee now appeals from the district court’s decision.\\n\\n Exercising jurisdiction pursuant to 28 U.S.C. § 158(d)(1), we agree with the\\n\\ndistrict court that the tax refund belongs to the FDIC, as receiver for the Bank.\\n\\nConsequently, we affirm the judgment of the district court and remand to the\\n\\nbankruptcy court for further proceedings.\\n\\n\\n\\n 2\\n\\f I\\n\\n a) UWBI and its affiliates\\n\\n UWBI is a Colorado corporation and a “unitary thrift [or bank] holding\\n\\ncompany.” Aplt. App., Vol. I at 41. UWBI owned several affiliate subsidiaries,\\n\\nincluding the Bank. The Bank, UWBI’s principal subsidiary, was headquartered in\\n\\nDenver and operated a community-based banking network that was comprised of\\n\\neight banking locations and a loan servicing office.\\n\\n b) The Tax Allocation Agreement\\n\\n UWBI’s affiliate subsidiaries were “members of an affiliated group . . . within\\n\\nthe meaning of Section 1504(a) of the Internal Revenue Code of 1986.” Id. at 41;\\n\\nsee 26 U.S.C. § 1504(a). Beginning in 2004 and continuing thereafter, the affiliated\\n\\ngroup “file[d] . . . consolidated federal income tax returns.” Aplt. App., Vol. I at 41.\\n\\n On January 1, 2008, UWBI and its affiliate subsidiaries entered into a Tax\\n\\nAllocation Agreement (the Agreement).1 The Agreement’s preamble noted that the\\n\\naffiliates had previously filed, and intended to continue to file, “consolidated federal\\n\\nincome tax return[s].” Id. The preamble further stated that “UWBI and the Affiliates\\n\\ndesire[d] to establish a method for (i) allocating the consolidated tax liability of the\\n\\nGroup among its members, (ii) reimbursing UWBI for the payment of such tax\\n\\nliability, and (iii) compensating each member of the Group for the use of its losses by\\n\\nany other member of the Group.” Id.\\n\\n\\n 1\\n Prior to 2008, UWBI and its affiliates had filed taxes under similar, but not\\nidentical, written agreements. Aplt. App., Vol. I at 182.\\n 3\\n\\f The Agreement in turn, under Section A, entitled “General Rule – Federal,”\\n\\noutlined how federal tax payments would be made:\\n\\n 1. Except as specifically set forth herein to the contrary, each\\n Affiliate shall pay UWBI an amount equal to the federal income tax\\n liability such Affiliate would have incurred were it to file a separate\\n return (or, if appropriate, a consolidated return with its subsidiary\\n affiliates). If a regulated first-tier Affiliate incurs a net operating loss or\\n excess tax credits, the regulated Affiliate is entitled to a refund equal to\\n the amount that it would have been entitled to receive had it not joined\\n in the filing of a consolidated return with UWBI. Similar treatment is\\n optional at UWBI discretion for nonregulated first-tier Affiliates. Any\\n refund shall generally not exceed the amount claimed or received as a\\n refund resulting from a carryback claim filed by UWBI. However, this\\n shall not prevent UWBI from the ability to make a refund over the\\n amount received or claimed as a refund or carryback, if in its sole\\n discretion it believes such payment is in its best interest. Additionally,\\n if part of [sic] all of an unused consolidated net operating loss, net\\n capital loss, tax credit or similar type item is allocated to an Affiliate\\n pursuant to Regulations Section 1.1502-21, and it is carried back, if\\n utilized, or it is carried forward, whether or not utilized, to a year in\\n which such Affiliate filed a separate income tax return or a consolidated\\n federal income tax return with another group, any refund or reduction in\\n tax liability arising from the carryback or carryforward shall be retained\\n by such Affiliate and such item shall not enter into the calculation of\\n liability to or from UWBI.\\n\\n 2. In essence, this Agreement requires that each first-tier\\n subsidiary be treated as a separate taxpayer with UWBI merely being an\\n intermediary between an Affiliate and the Internal Revenue Service\\n (“IRS”).\\n\\nId. The Agreement also, in Section C, included “specific policies designed to cover\\n\\ncertain factual scenarios” including, for example, “[c]haritable contributions.” Id. at\\n\\n42.\\n\\n Section G of the Agreement stated that “[e]ach Affiliate hereby appoints\\n\\nUWBI as its agent, as long as such Affiliate is a member of the UWBI group, for the\\n\\n\\n 4\\n\\fpurpose of filing such consolidated Federal income tax returns for the UWBI group\\n\\nas UWBI may elect to file and making any election, application or taking any action\\n\\nin connection therewith on behalf of the Affiliates.” Id. at 44. Each affiliate also,\\n\\nunder Section G, “consent[ed] to the filing of any such returns and the making of any\\n\\nsuch elections and applications.” Id.\\n\\n Under Section H, entitled “Miscellaneous,” the Agreement contained a\\n\\nprovision regarding refunds from the IRS:\\n\\n In the event of any adjustment to the tax returns of the Group as filed\\n (by reason of an amended return, claim for refund, or an audit by a\\n taxing authority), the liability of the parties to this Agreement shall be\\n re-determined to give effect to any such adjustment as if it had been\\n made as part of the original computation of tax liability, and payments\\n between the appropriate parties shall be made within 10 business days\\n after any such payments are made or refunds are received, or, in the\\n case of contested proceedings, within 10 business days after a final\\n determination of the contest.\\n\\nId. (quoting § H.1).\\n\\n Also under Section H, the Agreement stated, in pertinent part:\\n\\n The intent of this Agreement is to provide an equitable allocation of the\\n tax liability of the Group among UWBI and the Affiliates. Any\\n ambiguity in the interpretation hereof shall be resolved, with a view to\\n effectuating such intent, in favor of any insured depository institution.\\n\\nId. at 45 (quoting § H.4).\\n\\n c) UWBI’s filing of federal tax returns on behalf of the group\\n\\n UWBI proceeded, in accordance with the terms of the Agreement, to file\\n\\nfederal income tax returns for the consolidated group. In doing so, “the tax liabilities\\n\\n\\n\\n\\n 5\\n\\fand tax benefits” were computed “on a separate-entity basis for each Affiliate,” but\\n\\nUWBI ultimately filed one tax return “on a consolidated basis.” Id. at 82.\\n\\n For the tax year 2008, UWBI filed a federal income tax return for the affiliated\\n\\ngroup and reported that the Bank generated $34,397,709 in taxable income. The\\n\\nreturn indicated that UWBI itself did not generate taxable income in 2008.\\n\\n In 2010, the Bank suffered at least $35,351,690 in losses. Based upon the\\n\\nBank’s 2010 net operating losses, UWBI, at some point in 2011, filed on behalf of\\n\\nthe affiliated group a tax refund request of $4,846,625 to recover a portion of the\\n\\ntaxes paid by the Bank on its 2008 taxable income.2\\n\\n d) Appointment of the FDIC as receiver for the Bank\\n\\n The Bank was a federally chartered savings and loan association. On January\\n\\n21, 2011, the Office of Thrift Supervision (OTS) closed the Bank and appointed the\\n\\nFederal Deposit Insurance Corporation (FDIC) as receiver. Shortly thereafter, the\\n\\nFDIC notified the IRS of these events.\\n\\n e) UWBI’s bankruptcy proceedings\\n\\n Because the Bank was UWBI’s principal, if not sole, source of income, the\\n\\nBank’s receivership resulted in UWBI becoming insolvent. On March 2, 2012,\\n\\nUWBI filed a petition for Chapter 11 bankruptcy. As of that date, the tax refund\\n\\nrequest that UWBI filed in 2011 was still pending before the IRS.\\n\\n\\n\\n\\n 2\\n The Internal Revenue Code permits corporations to “carryback” net operating\\nlosses for up to two taxable years. See 26 U.S.C. § 172.\\n 6\\n\\f On August 30, 2012, the FDIC filed a proof of claim in UWBI’s bankruptcy\\n\\ncase in the aggregate amount of $4,847,000. The FDIC alleged that, as receiver for\\n\\nthe Bank, it was entitled to the federal tax refund that was due and owing from the\\n\\nIRS to the affiliate group because the refund stemmed exclusively from the Bank’s\\n\\nbusiness loss carrybacks. The FDIC also alleged that its claim covered “potential\\n\\nfraudulent transfers or unlawful dividends, unearned insurance premiums to the\\n\\nextent that the source of the premium payments was the Bank, insurance proceeds\\n\\npaid under applicable insurance coverage for any such losses, and other protective\\n\\nclaims.” Id. at 62.\\n\\n The bankruptcy case was converted to a Chapter 7 proceeding on April 15,\\n\\n2013. Rodriguez was appointed as the Chapter 7 trustee for the bankruptcy estate.\\n\\n f) The adversary proceeding\\n\\n On April 16, 2014, the Trustee initiated this adversary proceeding by filing a\\n\\ncomplaint against the FDIC asserting three claims: (1) a claim for declaratory relief\\n\\nin the form of a determination that the tax refund was the property of the debtor\\n\\nrather than the FDIC, (2) a claim for turnover of the tax refund, pursuant to 11 U.S.C.\\n\\n§ 542, to the extent the FDIC possessed the tax refund, and (3) an objection to the\\n\\nFDIC’s proof of claim. The bankruptcy court subsequently authorized the tax refund\\n\\nto be deposited into the court’s registry. On November 25, 2014, the FDIC filed a\\n\\ncounterclaim alleging that the FDIC, as the receiver for and successor to the Bank,\\n\\nowned the tax refund.\\n\\n\\n\\n 7\\n\\f On October 30, 2015, the parties filed cross motions for summary judgment.\\n\\nThe FDIC argued that there was “no provision in the . . . Agreement that transfers\\n\\nownership of the Bank-generated tax refunds to [UWBI], indicates that the Bank\\n\\nintended to transfer beneficial ownership of the tax refunds to [UWBI], or otherwise\\n\\nalters the widely recognized default rule regarding ownership of tax refunds by the\\n\\nentity in a consolidated tax group that generated those tax refunds.” Aplt. App., Vol.\\n\\nI at 78. The FDIC also argued that “[e]ven if the anticipated tax refund is paid to\\n\\n[UWBI], [UWBI] acts as agent for the Affiliated Group and, therefore, would only\\n\\nhold bare legal title in the tax refund.” Id. The Trustee argued, in contrast, that the\\n\\nAgreement “establishe[d] a debtor-creditor relationship between [UWBI] and the\\n\\nBank with respect to any tax refunds” and that “[i]f and when the Refund [wa]s paid\\n\\nto UWBI the funds w[ould] therefore become property of the [bankruptcy] Estate and\\n\\n[the FDIC] w[ould] have an unsecured, nonpriority claim for its pro rata share.” Id.\\n\\nat 178.\\n\\n In 2015, the IRS, after completing an audit, issued a refund in the amount of\\n\\n$4,081,334.67.\\n\\n On September 16, 2016, the bankruptcy court issued an opinion and order\\n\\ngranting summary judgment in favor of the Trustee and denying the FDIC’s motion\\n\\nfor summary judgment. In doing so, the bankruptcy court began by noting that 11\\n\\nU.S.C. § 541 outlines the creation of a bankruptcy estate and provides, in pertinent\\n\\npart, that the estate includes “‘all legal or equitable interests of the debtor in property\\n\\nas of the commencement of the case . . . wherever located and by whomever held.’”\\n\\n 8\\n\\fAplt. App., Vol. II at 382 (quoting § 541(a)). The bankruptcy court also noted that\\n\\n“[a] long line of bankruptcy cases (even pre-dating the modern Bankruptcy Code)\\n\\ndictate that if a debtor owns or is entitled to a federal loss carryback tax refund, such\\n\\nrefund generally becomes property of the debtor’s bankruptcy estate.” Id. at 383.\\n\\n The bankruptcy court concluded that the Agreement, “the Internal Revenue\\n\\nCode, and the IRS regulations all dictate that [UWBI], as the bank holding company\\n\\nfor the Affiliated Group has at least bare legal title to the Tax Refund.” Id. at 386\\n\\n(emphasis in original). “After all,” the bankruptcy court noted, “26 C.F.R. § 1.1502-\\n\\n77(d)(5) requires that the Tax Refund be made ‘directly to and in the name of’\\n\\n[UWBI].” Id.\\n\\n The bankruptcy court in turn concluded that the FDIC failed to establish that\\n\\nthe Bank had equitable ownership of the Tax Refund. In support of this conclusion,\\n\\nthe bankruptcy court noted that “neither the Internal Revenue Code nor the IRS\\n\\nregulations establish which entity, [UWBI] or the Bank, has equitable or beneficial\\n\\nownership of the Tax Refund.” Id.\\n\\n The bankruptcy court also determined that the Agreement created a debtor-\\n\\ncreditor relationship between UWBI and the Bank with respect to the tax refund. In\\n\\nparticular, the bankruptcy court concluded that the Agreement (a) “created fungible\\n\\npayment obligations through an intercompany account of payments and\\n\\nreimbursements” that indicated “the parties were creating a debtor-creditor\\n\\nrelationship,” (b) contains no escrow, segregation, or use restrictions regarding what\\n\\nUWBI can or cannot do when it receives a tax refund from the IRS, and (c) delegates\\n\\n 9\\n\\fdecision-making on tax matters to UWBI. Id. at 390. Consequently, the bankruptcy\\n\\ncourt concluded that UWBI was “the beneficial owner of the Tax Refunds,” and thus\\n\\nthe Tax Refund “belong[ed] to the Trustee (as Trustee of the [UWBI] bankruptcy\\n\\nestate).” Id.\\n\\n Based upon these conclusions, the bankruptcy court determined “that the\\n\\nTrustee [wa]s entitled to the Tax Refund.” Id. at 400. The bankruptcy court\\n\\nemphasized that this “d[id] not leave the FDIC without a remedy” because it was\\n\\n“still a general unsecured creditor of the [UWBI] bankruptcy estate and [could] share\\n\\npari passu with any other allowed general unsecured claims.” Id. at 400-01.\\n\\n The bankruptcy court entered judgment in the adversary proceeding on\\n\\nSeptember 16, 2016.\\n\\n g) The district court’s decision\\n\\n The FDIC appealed and, on July 10, 2017, the district court issued an order\\n\\nreversing the judgment of the bankruptcy court. The district court concluded, in\\n\\npertinent part, that the Agreement was “ambiguous regarding whether [UWBI] may\\n\\nkeep the tax refund in the present circumstances” and “that any ambiguity [should] be\\n\\nconstrued in favor of the Bank.” Aplt. App., Vol. III at 529. The district court noted\\n\\nthat the plain language of Section A.2 of the Agreement “declare[d] that the purpose\\n\\nof the [Agreement] is to set up an arrangement in which [UWBI] acts as nothing\\n\\nmore than a go-between, as between the subsidiaries and the IRS.” Id. at 552. The\\n\\ndistrict court also concluded that Section H.4 of the Agreement required it to construe\\n\\nany ambiguities in favor of the Bank and that, consequently, it was required to\\n\\n 10\\n\\finterpret the Agreement as requiring UWBI “to act as agent on behalf of the Bank in\\n\\nobtaining and remitting the refund.” Id. at 559. Accordingly, the district court\\n\\nconcluded that UWBI “held no more than legal title to the Refund, while the Bank\\n\\nheld equitable title,” and thus “[t]he Refund [wa]s not part of [UWBI’s] bankruptcy\\n\\nestate.” Id. at 560.\\n\\n The Trustee now appeals from the district court’s decision.\\n\\n II\\n\\n The Trustee’s arguments on appeal\\n\\n The Trustee argues that under “[t]he plain language” of the Agreement,\\n\\n“UWBI holds equitable title to the Tax Refund, and thus . . . the Refund is property\\n\\nof the UWBI estate.” Aplt. Br. at 12. In support, the Trustee asserts that the\\n\\nAgreement “imposes two reciprocal obligations.” Id. He contends that “[i]t requires\\n\\neach affiliate to pay to UWBI funds equal to the amount the affiliate would have been\\n\\nliable to pay the IRS had the affiliate filed an individual . . . tax return,” and it in turn\\n\\n“obliges UWBI to pay each affiliate funds equal to the amount of the refund to which\\n\\nthat affiliate would have been entitled had it filed a separate tax return.” Id. at 12-13.\\n\\nFurther, the Trustee argues that “[n]othing in the [Agreement] grants [the Bank] any\\n\\ninterest in any IRS tax refund actually received by UWBI.” Id. at 13. In short, the\\n\\nTrustee argues, the Agreement “creates a debtor-creditor relationship, and the Bank\\n\\nholds only an unsecured claim against the UWBI estate in the amount of funds the\\n\\nBank would have received had it filed a separate tax return.” Id. at 14.\\n\\n\\n\\n 11\\n\\f Standard of review\\n\\n “When hearing an appeal from a district court’s review of a bankruptcy-court\\n\\norder, ‘we independently review the bankruptcy court’s decision, applying the same\\n\\nstandard as the . . . district court.’” In re Peeples, 880 F.3d 1207, 1212 (10th Cir.\\n\\n2018) (quoting In re C.W. Min. Co., 798 F.3d 983, 986 (10th Cir. 2015)). “We\\n\\nreview bankruptcy-court orders granting summary judgment in adversarial\\n\\nproceedings de novo, and affirm if ‘there is no genuine dispute as to any material fact\\n\\nand the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ.\\n\\nP. 56(a)).\\n\\n The scope of UWBI’s bankruptcy estate\\n\\n It is well established that “[f]iling for Chapter 11 [or Chapter 7] bankruptcy\\n\\nhas several relevant legal consequences,” the most important of which, for purposes\\n\\nof this appeal, is that “an estate is created comprising all property of the debtor.”\\n\\nCzyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 978 (2017) (citing 11 U.S.C.\\n\\n§ 541(a)(1)). This includes “all legal or equitable interests of the debtor in property\\n\\nas of the commencement of the [bankruptcy] case.” 11 U.S.C. § 541(a)(1). The\\n\\nestate does not include, however, “[p]roperty in which the debtor holds, as of the\\n\\ncommencement of the [bankruptcy] case, only legal title and not an equitable interest\\n\\n. . . .” 11 U.S.C. § 541(d). Thus, in order for the tax refund to be considered part of\\n\\nUWBI’s estate, UWBI must hold both legal and equitable title to the tax refund.\\n\\n\\n\\n\\n 12\\n\\f The analytical framework for resolving ownership of the tax refund\\n\\n Section 1501 of the Internal Revenue Code (the Code) authorizes an “affiliated\\n\\ngroup” of corporations to “mak[e] a consolidated return with respect to income tax\\n\\n. . . .” 26 U.S.C. § 1501. The Code defines the term “affiliated group” to mean, in\\n\\npertinent part, “1 or more chains of includible corporations connected through stock\\n\\nownership with a common parent corporation which is an includible corporation\\n\\n. . . .” 26 U.S.C. § 1504(a)(1)(A). The Code does not, however, specify what\\n\\nhappens when an affiliated group that has filed a consolidated federal tax return\\n\\nreceives a tax refund. More specifically, the Code is silent with respect to the legal\\n\\nand equitable ownership of such a tax refund.\\n\\n Federal common law, however, provides a framework for resolving this issue.\\n\\nThe general rule in this circuit, as outlined in Barnes v. Harris, 783 F.3d 1185, 1195\\n\\n(10th Cir. 2015), is that “a tax refund due from a joint return generally belongs to the\\n\\ncompany responsible for the losses that form the basis of the refund.” In adopting\\n\\nthis principle, Barnes cited to and effectively adopted the Ninth Circuit’s decision in\\n\\nIn re Bob Richards Chrysler-Plymouth Corp., Inc., 473 F.2d 262, 265 (9th Cir.\\n\\n1973).3\\n\\n\\n\\n\\n 3\\n In Fed. Deposit Ins. Corp. v. AmFin Fin. Corp., 757 F.3d 530 (6th Cir.\\n2014), the Sixth Circuit declined to adopt the Bob Richards rule on the grounds that\\nit “is a creature of federal common law” and that “federal common law constitutes an\\nunusual exercise of lawmaking which should be indulged only in a few restricted\\ninstances.” Id. at 535. Whether or not this is a valid criticism, we are bound by the\\ndecision in Barnes.\\n 13\\n\\f Bob Richards involved facts somewhat similar, but not identical, to those at\\n\\nissue here. Western Dealer Management, Inc. (WDM) was a parent corporation that\\n\\nwholly owned two subsidiary corporations, one of which was Bob Richards Chrysler-\\n\\nPlymouth Corporation, Inc. (Bob Richards). In October 1965, Bob Richards filed a\\n\\npetition in bankruptcy. While that bankruptcy proceeding was pending, WDM filed\\n\\nconsolidated federal income tax returns on behalf of itself and its two subsidiaries for\\n\\nthe tax years 1965 and 1966. Notably, “[t]he return for 1966 showed that the\\n\\nconsolidated group was entitled to a refund of taxes” in the amount of $10,063.25\\n\\nand “[t]he entire refund . . . was due to the earnings history of” Bob Richards. Id. at\\n\\n263. The bankruptcy trustee claimed that the refund belonged to the bankruptcy\\n\\nestate, but WDM claimed a right to the entire tax refund “as a set-off” of a “$45,000\\n\\nunsecured obligation of” Bob Richards. Id.\\n\\n The Ninth Circuit concluded that “[t]he Trustee, not WDM, [wa]s entitled to\\n\\nthe refund.” Id. at 264. In reaching this conclusion, the Ninth Circuit first “note[d]\\n\\nthat at the date of the filing of the petition in bankruptcy, the Trustee acquired any\\n\\ninterest [Bob Richards] had in the carryback tax refund.” Id. The Ninth Circuit in\\n\\nturn noted there was “no evidence that [Bob Richards] or the Trustee at any time\\n\\nvoluntarily assigned its rights in the refund to WDM.” Id. Although the Ninth\\n\\nCircuit acknowledged that Bob Richards “consented to the filing of a consolidated\\n\\ntax return,” it noted that “such consent [could not] be construed to include the\\n\\ntransfer of a valuable asset without further consideration.” Id.\\n\\n\\n\\n 14\\n\\f Relatedly, the Ninth Circuit noted “that there is nothing in the [Internal\\n\\nRevenue] Code or Regulations that compels the conclusion that a tax saving must or\\n\\nshould inure to the benefit of the parent company or of the company which has\\n\\nsustained the loss that makes possible the tax saving.” Id. (quotations and brackets\\n\\nomitted). Thus, the Ninth Circuit noted, the normal rule is that “where there is an\\n\\nexplicit agreement, or where an agreement can fairly be implied, as a matter of state\\n\\ncorporation law the parties are free to adjust among themselves the ultimate tax\\n\\nliability.” Id. In the case before it, however, “the parties made no agreement\\n\\nconcerning the ultimate disposition of the tax refund.” Id. at 265.\\n\\n All of which led the Ninth Circuit to adopt what has since become known as\\n\\n“the Bob Richards rule”:\\n\\n Absent any differing agreement we feel that a tax refund resulting solely\\n from offsetting the losses of one member of a consolidated filing group\\n against the income of that same member in a prior or subsequent year\\n should inure to the benefit of that member. Allowing the parent to keep\\n any refunds arising solely from a subsidiary’s losses simply because the\\n parent and subsidiary chose a procedural device to facilitate their\\n income tax reporting unjustly enriches the parent.\\n\\nId.\\n\\n Applying these principles to the facts before it, the Ninth Circuit emphasized\\n\\nthat “WDM received the tax refund from the government only in its capacity as agent\\n\\nfor the consolidated group.” Id. And because “there [wa]s no express or implied\\n\\nagreement that the agent had any right to keep the refund,” it concluded “that WDM\\n\\nwas acting as a trustee of a specific trust and was under a duty to return the tax\\n\\nrefund to the estate of the bankrupt.” Id.\\n\\n 15\\n\\f The Trustee argues that Barnes and Bob Richards are inapplicable here\\n\\nbecause of the existence of the Agreement. But the Trustee is only partially correct.\\n\\nBarnes, which adopted Bob Richards, clearly applies to this case and outlines the\\n\\ngeneral framework that we must apply in resolving the parties’ dispute. The Trustee\\n\\nis correct, however, that this case differs from Barnes and Bob Richards because\\n\\nthere was a written agreement in place—the Agreement—that discussed the filing of\\n\\na consolidated federal tax return. Consequently, as directed by Barnes and Bob\\n\\nRichards, we must look to the terms of the Agreement and, taking into account\\n\\nColorado case law, decide whether it unambiguously addresses how tax refunds are\\n\\nto be handled and, if so, whether it purports to deviate from the general rule outlined\\n\\nin Barnes and Bob Richards. See generally Barnhill v. Johnson, 503 U.S. 393, 398\\n\\n(1992) (“In the absence of any controlling federal law, ‘property’ and ‘interests in\\n\\nproperty’ are creatures of state law.” (quotations omitted)).\\n\\n What does the Agreement say about tax refunds?\\n\\n As we shall explain, the written terms of the Agreement are, at best,\\n\\nambiguous regarding the nature of the relationship that UWBI and the Bank intended\\n\\nto create with one another. Specifically, certain of its provisions suggest the\\n\\nexistence of an agency relationship, while other provisions suggest the intent to\\n\\ncreate something other than an agency relationship.\\n\\n As noted, Section A.1 of the Agreement, which is contained under the heading\\n\\n“General Rule – Federal,” provides, in pertinent part:\\n\\n\\n\\n 16\\n\\f If a regulated first-tier Affiliate incurs a net operating loss or excess tax\\n credits, the regulated Affiliate is entitled to a refund equal to the amount\\n that it would have been entitled to receive had it not joined in the filing\\n of a consolidated return with UWBI. Similar treatment is optional at\\n UWBI discretion for nonregulated first-tier Affiliates. Any refund shall\\n generally not exceed the amount claimed or received as a refund\\n resulting from a carryback claim filed by UWBI. However, this shall\\n not prevent UWBI from the ability to make a refund over the amount\\n received or claimed as a refund or carryback, if in its sole discretion it\\n believes such payment is in its best interest. Additionally, if part of\\n [sic] all of an unused consolidated net operating loss, net capital loss,\\n tax credit or similar type item is allocated to an Affiliate pursuant to\\n Regulations Section 1.1502-21, and it is carried back, if utilized, or it is\\n carried forward, whether or not utilized, to a year in which such\\n Affiliate filed a separate income tax return or a consolidated federal\\n income tax return with another group, any refund or reduction in tax\\n liability arising from the carryback or carryforward shall be retained by\\n such Affiliate and such item shall not enter into the calculation of\\n liability to or from UWBI.\\n\\nAplt. App., Vol. I at 41.\\n\\n The first of these sentences—stating that “[i]f a regulated first-tier Affiliate,”\\n\\ni.e., the Bank, “incurs a net operating loss or excess tax credits, the regulated\\n\\nAffiliate is entitled to a refund equal to the amount that it would have been entitled to\\n\\nreceive had it not joined in the filing of a consolidated return with USBI”—is\\n\\narguably ambiguous. On the one hand, it purports to “entitle[]” the regulated affiliate\\n\\n“to a refund equal to the amount that it would have received had it not joined in the\\n\\nfiling of a consolidated return.” On the other hand, when contrasted with the last\\n\\nsentence, it does not give the Bank the right to “retain” the refund. Instead, under the\\n\\nfirst sentence, a refund received by UWBI as a result of a net operating loss incurred\\n\\nby the Bank is taken into account by the parties in calculating their year-end\\n\\nliabilities to each other.\\n\\n 17\\n\\f The second and third sentences of Section A.1 afford UWBI with two types of\\n\\ndiscretion: (1) whether to pay any refund at all to a nonregulated affiliate; and (2)\\n\\nwhen it pays a refund to any affiliate, whether to pay an amount equivalent to the\\n\\namount the affiliate would have received had it filed its own income tax return, or\\n\\ninstead to pay a greater amount. These sentences thus arguably point toward\\n\\nsomething more than a mere agency relationship.\\n\\n The last sentence of Section A.1 indicates that if a net operating loss of any\\n\\naffiliate is carried back to a year when that affiliate was filing a separate income tax\\n\\nreturn (or filing a consolidated return with another group), then “any refund . . . shall\\n\\nbe retained by such Affiliate and such item will not enter into the calculation of\\n\\nliability to or from UWBI.” This arguably suggests that, in all other situations, an\\n\\naffiliate does not “retain” a tax refund and, instead, refunds are taken into\\n\\nconsideration during the annual reconciliation of liability between the parties.\\n\\n Section A.2 of the Agreement, which is also contained under the heading\\n\\n“General Rule – Federal,” states: “In essence, this Agreement requires that each first-\\n\\ntier subsidiary be treated as a separate taxpayer with UWBI merely being an\\n\\nintermediary between an Affiliate and the Internal Revenue Service . . . .” Id.\\n\\nAlthough the term “intermediary” is not expressly defined in the Agreement, it is\\n\\ncommonly understood to mean “[a] mediator or go-between.” Intermediary, Black’s\\n\\nLaw Dictionary (10th ed. 2014). Thus, in contrast to most of Section A.1, Section\\n\\nA.2 clearly points to the existence of an agency relationship between UWBI and its\\n\\n\\n\\n 18\\n\\faffiliates, rather than a debtor/creditor relationship. In other words, it suggests that\\n\\nUWBI will simply act as a conduit through which the refund will pass.\\n\\n Section F of the Agreement, entitled “Tax Settlement Payments – Federal and\\n\\nState,” states, in pertinent part, that affiliates are to make “[e]stimated payments of\\n\\nFederal . . . taxes” to UWBI on a specified quarterly basis (April 15, June 15,\\n\\nSeptember 15, and December 15). Id. at 44. Those estimated payments are to be in\\n\\n“an amount equal to the amount of any estimated federal income taxes which the\\n\\nAffiliate would have been required to pay on or before such dates if the Affiliate had\\n\\nfiled its own separate income tax return for such taxable period.” Id. “Payments [by\\n\\nUWBI] to an Affiliate for net operating losses or similar items shall not be made\\n\\nunder this provision, but rather on an annual basis pursuant to Section A” of the\\n\\nAgreement. Id.\\n\\n In turn, Section E of the Agreement, entitled “Tax Settlement Payments –\\n\\nFederal,” provides in pertinent part:\\n\\n 1. Preliminary tax settlement payments are due on or before March 15\\n following the end of the appropriate taxable year. Although\\n overpayments of estimated taxes made by Affiliates are not refunded\\n until final tax settlement is done, an Affiliate with a taxable loss for the\\n year may recover estimated taxes paid for that year before final\\n settlement if an “expedited refund” claim is filed with UWBI by\\n February 15 following the end of the tax year.\\n\\n 2. Each first-tier Affiliate shall compute its final tax settlement liability\\n based on the amounts included for that Affiliate (and its subsidiaries, if\\n applicable) in the consolidated federal income tax return filed. A copy\\n of such computation will be prepared by October 31, and any\\n differences will be resolved. Final tax settlement payments or refunds\\n are due on or before November 15.\\n\\n\\n 19\\n\\fId. at 43-44.\\n\\n Considered together, Sections E and F obligate affiliates to make quarterly\\n\\nestimated tax payments to UWBI during the course of a taxable year, preliminary tax\\n\\nsettlement payments to UWBI on or before March 15th following the end of the\\n\\ntaxable year, and final tax settlement payments, if necessary, to UWBI on or before\\n\\nNovember 15th following the end of the taxable year. In turn, Section E, when\\n\\nconsidered together with Section A, obligates UWBI to (1) refund to its affiliates, by\\n\\nNovember 15th following the end of the taxable year, any overpayments of estimated\\n\\ntaxes, (2) expedite any such refund if an affiliate has a taxable loss for the year in\\n\\nquestion and the affiliate files with UWBI an expedited refund claim by February\\n\\n15th following the end of the taxable year, and (3) ensure that, when a regulated first-\\n\\ntier affiliate incurs a net operating loss or excess tax credits, any such refunds paid to\\n\\nthat affiliate are equal to or greater than the amount that such affiliate would have\\n\\nbeen entitled to receive had it not joined in the filing of the consolidated tax return.\\n\\n Section G of the Agreement states that “[e]ach Affiliate hereby appoints\\n\\nUWBI as its agent . . . for the purpose of filing such consolidated Federal income tax\\n\\nreturns for the UWBI group as UWBI may elect to file and making any election,\\n\\napplication, or taking any action in connection therewith on behalf of the Affiliates.”\\n\\nId. at 44.\\n\\n Lastly, Section H of the Agreement, entitled “Miscellaneous,” contains two\\n\\nrelevant paragraphs. Section H.1 states:\\n\\n\\n\\n 20\\n\\f In the event of any adjustment to the tax returns of the Group as filed\\n (by reason of an amended return, claim for refund, or an audit by a\\n taxing authority), the liability of the parties to this Agreement shall be\\n re-determined to give effect to any such adjustment as if it had been\\n made as part of the original computation of tax liability, and payments\\n between the appropriate parties shall be made within 10 business days\\n after any such payments are made or refunds are received, or, in the\\n case of contested proceedings, within 10 business days after a final\\n determination of the contest.\\n\\nId. Further, Subsection H.4 states, in pertinent part:\\n\\n The intent of this Agreement is to provide an equitable allocation of the\\n tax liability of the Group among UWBI and the Affiliates. Any\\n ambiguity in the interpretation hereof shall be resolved, with a view to\\n effectuating such intent, in favor of any insured depository institution.\\n\\nId. at 45.\\n\\n Considered in its entirety, it is apparent that the Agreement was intended to\\n\\nauthorize the filing of a consolidated tax return and, in turn, to create a series of\\n\\npayment obligations between UWBI and its affiliates—including the Bank—in order\\n\\nto carry out the goal of filing a consolidated tax return. Affiliates are obligated, by\\n\\nway of both estimated and final tax payments, to pay UWBI the precise amount of\\n\\ntheir federal income tax obligations. UWBI, in turn, is obligated to refund to its\\n\\naffiliates any overpayments of estimated taxes. When an affiliate incurs a taxable\\n\\nloss due to net operating losses or excess tax credits, UWBI’s obligations depend\\n\\nupon the nature of the affiliate. If the affiliate is a regulated, first-tier affiliate such\\n\\nas the Bank, then UWBI is obligated to pay that affiliate “a refund equal to” or\\n\\ngreater than “the amount that it would have been entitled to receive had it not joined\\n\\nin the filing of a consolidated return with UWBI.” Id. at 41 (§ A.1 of the\\n\\n\\n 21\\n\\fAgreement). For “nonregulated first-tier Affiliates,” UWBI has the discretion to\\n\\ndecide whether or not to treat them similarly to regulated first-tier affiliates in terms\\n\\nof tax refunds. Id.\\n\\n Critically, however, the Agreement is, on its face, ambiguous with respect to\\n\\nthe type of relationship it intends to create between UWBI and regulated, first-tier\\n\\naffiliates, such as the Bank, regarding the ownership of refunds from the IRS. 4 See\\n\\nPinnacol Assurance v. Hoff, 375 P.3d 1214, 1229 (Colo. 2016) (noting that a contract\\n\\nis ambiguous if it is reasonably susceptible of more than one meaning); id. (“Whether\\n\\na written contract is ambiguous is a question of law that we review de novo.”). On\\n\\nthe one hand, portions of the Agreement quite clearly indicate the intent to create an\\n\\nagency relationship between UWBI and its regulated, first-tier affiliates. For\\n\\nexample, Section A.2 states that “each first-tier subsidiary [is to] be treated as a\\n\\nseparate taxpayer with UWBI merely being an intermediary between an Affiliate and\\n\\nthe” IRS. Aplt. App., Vol. I at 41. Likewise, Section G states that UWBI is being\\n\\nappointed by each affiliate to act as its agent for purposes of filing the consolidated\\n\\ntax return and taking any action in connection therewith. On the other hand, portions\\n\\nof the Agreement arguably suggest the intent for UWBI to retain tax refunds before\\n\\nforwarding them on to regulated, first-tier affiliates. For example, parts of Section\\n\\n\\n 4\\n Rodriguez argues the FDIC has waived any argument that the Agreement is\\nambiguous. We reject that argument. The FDIC has consistently argued the\\nAgreement creates an agency relationship, rather than a debtor/creditor relationship.\\nThe FDIC has also consistently argued that any ambiguity in the Agreement must be\\nresolved in the Bank’s favor. Aplt. App., Vol. I at 89, 237; Vol. III at 423, 434, 452,\\n453, 500, 520-21.\\n 22\\n\\fA.1 imply that UWBI will retain tax refunds and then later take them into account\\n\\nduring the annual settlement process. In addition, the fact that Section A.1 affords\\n\\nUWBI with discretion regarding the amount to refund a regulated, first-tier affiliate\\n\\n(i.e, the exact amount of the refund or a greater amount) seems to suggest something\\n\\nother than an agency relationship. Finally, the ambiguity of the Agreement on this\\n\\nissue is compounded by the fact that it contains no language requiring UWBI to\\n\\nutilize a trust or escrow for tax refunds—which would suggest the existence of an\\n\\nagency or trust relationship—nor does it contain provisions for interest and\\n\\ncollateral—which would be indicative of a debtor-creditor relationship. See In re\\n\\nNetBank, Inc., 729 F.3d 1344, 1351 (11th Cir. 2013); Fed. Deposit Ins. Corp. v.\\n\\nAmFin Fin. Corp., 757 F.3d 530, 535 (6th Cir. 2014).\\n\\n Resolving the Agreement’s ambiguity\\n\\n Notably, the Agreement itself provides a method for resolving the ambiguity.\\n\\nSection H.4 of the Agreement states that “[a]ny ambiguity in the interpretation hereof\\n\\nshall be resolved, with a view to effectuating such intent [i.e., to provide an equitable\\n\\nallocation of the tax liability of the Group among UWBI and the Affiliates], in favor\\n\\nof any insured depository institution.” Aplt. App., Vol. I at 45. Quite clearly,\\n\\nconstruing the Agreement to create an agency relationship between UWBI and the\\n\\nBank with respect to federal tax refunds—and thereby affording ownership of the tax\\n\\nrefund to the Bank—is more favorable to the Bank than construing the Agreement to\\n\\ncreate a debtor/creditor relationship and thus affording ownership of federal tax\\n\\nrefunds to UWBI. We therefore conclude that the ambiguity in the Agreement must\\n\\n 23\\n\\fbe construed in favor of the Bank and the FDIC, and that, consequently, the\\n\\nAgreement must be read as creating only an agency relationship between UWBI and\\n\\nthe Bank.\\n\\n Conclusion\\n\\n In sum, we conclude that the Agreement creates an agency relationship\\n\\nbetween UWBI and the Bank and that, consequently, the Agreement’s intended\\n\\ntreatment of tax refunds does not differ from the general rule outlined in Barnes and\\n\\nBob Richards. Therefore, we conclude that the tax refund at issue belongs to the\\n\\nBank, and that the FDIC, as receiver for the Bank, was entitled to summary judgment\\n\\nin its favor.\\n\\n III\\n\\n We AFFIRM the judgment of the district court and REMAND to the\\n\\nbankruptcy court for further proceedings consistent with this opinion.\\n\\n\\n\\n\\n 24\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":392,"cells":{"id":{"kind":"number","value":8443852,"string":"8,443,852"},"name":{"kind":"string","value":"United States v. Richard ROE"},"name_abbreviation":{"kind":"string","value":"United States v. Roe"},"decision_date":{"kind":"string","value":"2019-01-29"},"docket_number":{"kind":"string","value":"No. 19-600"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Murphy\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415279/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"MURPHY"},"judge2":{"kind":"string","value":"MURPHY"},"judge3":{"kind":"string","value":""},"exactly_three_caps":{"kind":"number","value":0,"string":"0"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8443852/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Richard ROE\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Richard ROE\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-01-29\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":393,"cells":{"id":{"kind":"number","value":4578980,"string":"4,578,980"},"name":{"kind":"string","value":"Jimmy Fletcher MEDERS, Petitioner-Appellant, v. WARDEN, GEORGIA DIAGNOSTIC PRISON, Respondent-Appellee."},"name_abbreviation":{"kind":"string","value":"Jimmy Meders v. Warden, Georgia Diagnostic Prison"},"decision_date":{"kind":"string","value":"2019-01-04"},"docket_number":{"kind":"string","value":"14-14178; 15-14734"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Carnes, Marcus, Newsom\", \"parties\": \"\", \"opinions\": [{\"author\": \"ED CARNES, Chief Judge\", \"type\": \"010combined\", \"text\": \"Case: 14-14178 Date Filed: 01/04/2019 Page: 1 of 44\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n Nos. 14-14178; 15-14734\\n ________________________\\n\\n D.C. Docket No. 2:07-cv-00090-LGW-JEG\\n\\n\\n\\nJIMMY FLETCHER MEDERS,\\n\\n Petitioner-Appellant,\\n\\n versus\\n\\nWARDEN, GEORGIA DIAGNOSTIC PRISON,\\n\\n Respondent-Appellee.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Georgia\\n ________________________\\n\\n On Petition for Rehearing by the Panel\\n\\n ––––––––––––––––––––––––\\n\\n (January 4, 2019)\\n\\nBefore ED CARNES, Chief Judge, MARCUS, and NEWSOM, Circuit Judges.\\n\\nED CARNES, Chief Judge:\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 2 of 44\\n\\n\\n The Appellant, Jimmy Fletcher Meders, filed a petition for rehearing en\\n\\nbanc, which under our rules also counts as a petition for panel rehearing. See 11th\\n\\nCir. R. 35, I.O.P. 2 (“A petition for rehearing en banc will also be treated as a\\n\\npetition for rehearing before the original panel.”); Cadet v. Fla. Dep’t of Corr., 853\\n\\nF.3d 1216, 1218 (11th Cir. 2017) (“At least until an order granting or denying the\\n\\npetition for rehearing en banc is issued, a panel retains authority to modify its\\n\\ndecision and opinion.”).\\n\\n The petition, insofar as it requests panel rehearing, is granted to the extent\\n\\nthat we vacate our earlier opinion, Meders v. Warden, Ga. Diagnostic Prison, 900\\n\\nF.3d 1330 (11th Cir. 2018), and issue this one in its place.\\n\\n The petition for rehearing en banc remains pending. In light of the issuance\\n\\nof this revised panel opinion, the Appellant is granted 21 days to file a supplement\\n\\nto his petition for rehearing en banc, if he wishes to do so. See Fed. R. App. P.\\n\\n40(a)(4)(C); cf. CSX Transp., Inc. v. Ala. Dep’t of Revenue, 888 F.3d 1163, 1188\\n\\nn.14 (11th Cir. 2018). He is not required to file a supplement. If he does file one\\n\\nand the Court desires a response from the Appellee, one will be requested.\\n\\n Our revised opinion follows:1\\n\\n\\n\\n 1\\n Our only revisions involve Part II of the opinion. We have removed the seven\\nparagraphs of the former opinion beginning with: “The Georgia Supreme Court denied Meders’\\n. . .” and ending with “hearing in the state trial court on remand.” In their place we have added\\nthe 10 paragraphs beginning with: “The Georgia Supreme Court denied Meders’ . . .” and\\nending with “that are relevant to the ineffective assistance of counsel claims.”\\n\\n\\n 2\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 3 of 44\\n\\n\\n Jimmy Fletcher Meders, a Georgia prisoner, filed a 28 U.S.C. § 2254\\n\\npetition in the Southern District of Georgia raising 18 claims. After the district\\n\\ncourt denied his petition, Meders moved for a certificate of appealability on several\\n\\nof his claims. The district court granted that motion only as to his claim alleging\\n\\nthat trial counsel was ineffective at the guilt phase of his trial. This is his appeal.\\n\\n I. BACKGROUND\\n\\n A. Facts\\n\\n The facts that follow in these two paragraphs are not disputed. On October\\n\\n13, 1987, Meders went to help his boss, Randy Harris, fix a car at Harris’ house.\\n\\nBill Arnold and Greg Creel later arrived at the house. Arnold is Harris’ cousin,\\n\\nand Creel is Arnold’s friend. Meders, Harris, Arnold, and Creel spent the\\n\\nafternoon drinking beer and liquor. The four of them went to a Best Western motel\\n\\nlater that evening, where Harris had rented a room for a young woman with whom\\n\\nhe was having an extramarital affair. Meders, Arnold, and Creel left the motel\\n\\nlater that night.\\n\\n Around 2:35 the next morning (October 14), the three men stopped by a\\n\\nJiffy Store. Don Anderson, the store clerk, was shot twice — once in the chest,\\n\\nonce in the head — and he died. The weapon used in the shooting was a Dan\\n\\nWesson .357 Magnum revolver. Meders took between $31 and $38 from the cash\\n\\nregister. Included in the cash taken were two $1 bills and a $5 bill that the store\\n\\n\\n\\n 3\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 4 of 44\\n\\n\\nmanager had planted as bait money — she had written down the three bills’ serial\\n\\nnumbers and kept them in the store’s records so that the money could be identified\\n\\nif the store was robbed and the money was recovered. That bait money and some\\n\\nfood stamps were found in Meders’ wallet and in his house after he was arrested\\n\\nlater that same day. The murder weapon was found under his bed two days later.\\n\\n B. The Trial\\n\\n Meders was indicted in Georgia state court in December 1987 for the murder\\n\\nand armed robbery of Anderson, the store clerk. The case proceeded to a jury trial.\\n\\n 1. The State’s Witnesses\\n\\n Because the claim Meders presses in this Court involves the trial testimony\\n\\nof several of the State’s witnesses, we recount their testimony in some detail.\\n\\n The State first called Harris to the stand. He testified that he spent the\\n\\nafternoon of October 13 drinking with Meders, Arnold, and Creel. He paid Meders\\n\\nabout $200 for his work on a car, and while they were sitting around drinking and\\n\\ntalking, Meders kept mentioning that he owed some people in Florida $2,000 for\\n\\nsome drugs, and that they were “going to come down here and kill him if he didn’t\\n\\npay them.”\\n\\n Harris testified that later that evening all four men went to a Best Western\\n\\nmotel. They continued to drink, “smoked a joint or two,” and sat around talking in\\n\\nthe motel room. Meders, Arnold, and Creel left the motel around 8:30 p.m. but\\n\\n\\n\\n 4\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 5 of 44\\n\\n\\nMeders returned to it around 3:15 a.m. After he did so, according to Harris,\\n\\nMeders pulled out a revolver and told him: “I just blowed a man’s head off over\\n\\n$38.00.” Harris thought he was joking, so Meders threw some cash and some\\n\\n“little white pieces of paper” about “the same size [as] a dollar bill” on the bed.\\n\\nMeders also opened the revolver’s chambers and dumped the bullets on the bed.\\n\\nHarris said that two of the bullets had been “freshly fired.” He testified that\\n\\nMeders picked up the cash and the pieces of paper, put them back in his pocket,\\n\\nand left the motel.\\n\\n Harris testified that around that same time, Arnold called his motel room and\\n\\nasked Harris to pick up Creel and him from a trailer park. Harris drove Creel’s\\n\\ntruck to the trailer park, picked up both of them, and took them to Harris’ house.\\n\\nAfter arriving at his house around 4:00 or 5:00 a.m., Harris urged the two of them\\n\\nto go to the police and report what had happened. He testified that the three of\\n\\nthem talked for about an hour and then all three went to sleep at his house. Around\\n\\n9:00 a.m., Harris woke up and went to his shop; the police questioned him there\\n\\nand then took him to the police station for more questioning.\\n\\n Creel testified next for the State. He stated that he, Harris, Arnold, and\\n\\nMeders had spent the afternoon of October 13 drinking before going to the Best\\n\\nWestern later that evening. After spending a few hours in the motel room, he,\\n\\nArnold, and Meders left and went riding around, stopping at a couple of bars.\\n\\n\\n\\n 5\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 6 of 44\\n\\n\\nArnold was driving, Meders was in the passenger seat, and Creel was in the back\\n\\nseat. They later stopped at a Jiffy Store because Creel was hungry. He testified\\n\\nthat both he and Meders got out of the car and went into the store. Once inside,\\n\\nCreel grabbed a Yoo-hoo and a package of sausage and biscuits. While he was\\n\\nheating up his sausage and biscuits in a microwave in the back of the store, he\\n\\nheard a gunshot. He turned around and saw the store clerk falling against the wall\\n\\nand Meders facing the wounded clerk.\\n\\n Creel testified that he “tore out” of the store, and as he was running out, he\\n\\nheard a second gunshot. He exited the store, jumped in the back seat of the car,\\n\\nand told Arnold to “go” because Meders had “just shot a man.” He recounted how\\n\\nMeders had run out of the store, jumped in the front passenger seat of the car, and\\n\\npointed his gun at Arnold and Creel. Arnold drove to Shady Acres, a trailer park,\\n\\nwhere he and Creel got out. Meders got in the driver’s seat, and Arnold told\\n\\nMeders “to never come around him again.” Meders asked Arnold and Creel if they\\n\\nwanted any of the money or food stamps he had taken from the store. They both\\n\\nsaid no, that they didn’t want any part of it. Creel and Arnold then walked to one\\n\\nof the trailers where they called Harris to pick them up. Creel testified that he\\n\\ndidn’t know Meders until the day before the shooting, that he didn’t know that\\n\\nMeders had a gun until the shooting, and that he had no idea that Meders was\\n\\n\\n\\n\\n 6\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 7 of 44\\n\\n\\ngoing to rob the store or shoot the clerk. He also stated that he had given the police\\n\\ntwo statements about the incident: one on October 15, and one a few weeks later.\\n\\n On cross-examination Creel confirmed that, after they all were finished\\n\\ndrinking at Harris’ house, they did not take Meders back to his house but instead\\n\\nwent to the Best Western. For that reason, Creel thought Meders “must have” had\\n\\nthe gun on him during the afternoon of October 13. Defense counsel also asked\\n\\nCreel whether he shot at a couple of trucks while they were riding around that\\n\\nevening. Creel testified that he did not — that he didn’t even know Meders had a\\n\\ngun until the shooting inside the store.\\n\\n The State next presented Arnold, who is Harris’ cousin. For the most part\\n\\nArnold’s testimony tracked Creel’s. Arnold testified that he had grown up with\\n\\nCreel and that he had known Meders for about “a year or two” before the shooting.\\n\\nArnold told how, after the four of them spent the afternoon of October 13 drinking,\\n\\nthey all went to a room at the Best Western, and later he, Creel, and Meders left\\n\\n(without Harris) to go riding around. In the early morning hours of October 14,\\n\\nthey stopped at a Jiffy Store because Creel was hungry and Meders wanted some\\n\\ncigarettes. After Arnold parked the car, Creel and Meders both went inside the\\n\\nstore. The next thing Arnold heard was a gunshot, and the next thing he saw was\\n\\nCreel running out of the store. Then Arnold heard another shot, and Creel jumped\\n\\nin the car and “hollered that Jimmy [Meders] had just killed that man.” Meders\\n\\n\\n\\n 7\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 8 of 44\\n\\n\\nthen jumped in the car, waved his gun around and pointed it at Arnold and Creel,\\n\\nand told Arnold to drive off and “get away from the store.”\\n\\n Which Arnold did. He drove them to the Shady Acres Trailer Park, where\\n\\nhe and Creel got out of the car and refused to take any of the cash Meders had\\n\\nstolen. Meders got in the driver’s seat and drove off, while Arnold and Creel went\\n\\ninto a friend’s trailer and called Harris and asked him to pick them up. Arnold\\n\\ntestified that Harris picked them up and they all went to Harris’ house, where he\\n\\ntold them that they should go to the police. Instead, the three went to sleep.\\n\\nArnold went to the police station the next morning, October 15, to give a\\n\\nstatement.\\n\\n On cross-examination Arnold testified that he did not take Meders back to\\n\\nhis house in the hours before the shooting but that they did stop by a bar while they\\n\\nwere driving around. He stated that no one in the car had “shot at a truck” while\\n\\nthey were driving around.\\n\\n Margaret Clements, who was the manager of the Jiffy Store at the time of\\n\\nthe shooting, was the next witness for the State. She testified that a couple of days\\n\\nbefore the shooting she had recorded the serial numbers from a $5 bill and two $1\\n\\nbills, and that those three bills were put in a money clip in the register to use as the\\n\\nstore’s “bait money.” When the bait money was removed from the register, it\\n\\nwould trigger a silent alarm. She said that when she went to the store after the\\n\\n\\n\\n 8\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 9 of 44\\n\\n\\nshooting, between $31.00 and $38.00 — which included the $7.00 in bait money\\n\\n— had been taken from the register, but she couldn’t determine how many food\\n\\nstamps were taken. She also testified that a receipt was left sticking out of the\\n\\nregister, which showed a transaction for 51 cents at 2:35 a.m. on October 14, 1987.\\n\\n The State then presented several witnesses who testified about the scene of\\n\\nthe crime, the evidence related to the crime, and the police department’s\\n\\ninvestigation of the crime.2 Among them was Charles Byerley, an investigator\\n\\nwith the county police department, who testified about the evidence found during\\n\\nthe search of Meders’ house. He and two other officers found a holster containing\\n\\nseveral rounds of .357 Magnum bullets. They also found a dollar bill that was torn\\n\\nin half sitting on top of a television in the house. Byerley testified that the torn\\n\\ndollar bill had the same serial number as one of the $1 bills from the Jiffy Store’s\\n\\nbait money. He also stated that after Meders was arrested later that day, he had\\n\\ninventoried Meders’ wallet and found $82 in cash, as well as some food stamps.\\n\\n\\n 2\\n Abe Brown, the Glynn County coroner, and David Griffin, the county medical\\nexaminer, testified about Anderson’s gunshot wounds and the cause of his death. Charlie\\nBeasley from the Glynn County Police Department’s evidence and investigation unit testified\\nthat he secured the evidence from the crime scene and a few days later he delivered it to Roger\\nParian, a firearms examiner from the Georgia Bureau of Investigation. Parian testified that,\\nbased on the evidence from the crime scene, the two .357 Magnum bullets recovered there came\\nfrom the Dan Wesson .357 revolver that Beasley had provided to him.\\n Greg McMichael, a Glynn County police officer at the time of the shooting, testified that\\nwhen he responded to the call at the Jiffy Store, he passed a car with several occupants driving\\naway from the location of the Jiffy Store. And Matthew Doering, a detective from the Glynn\\nCounty Police Department, testified that on October 14 he found that same car at Meders’ house.\\nAfter impounding it, he searched the car and found a “Dandy Sausage Biscuits” wrapper.\\n\\n\\n 9\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 10 of 44\\n\\n\\nThe serial numbers of a $1 bill and a $5 bill from Meders’ wallet matched the\\n\\nserial numbers of the other $1 bill and the $5 bill from the bait money.3 A Georgia\\n\\ncitation for the sale of cocaine was also found in Meders’ wallet and it was\\n\\nadmitted into evidence.\\n\\n The State called Jack Boyet as its last witness. Boyet was a detective with\\n\\nthe Glynn County Police Department at the time of the murder. He responded to\\n\\nthe scene at the Jiffy Store and also went with two other officers to Meders’ house\\n\\nlater that morning to question him. At the house Boyet told Meders that he had\\n\\nsome questions about a homicide at the Jiffy Store, and Meders falsely stated that\\n\\nhe didn’t know anything about it. Boyet then asked Meders whether he had a gun\\n\\nor knife on him, and Meders admitted that he did. The officers took a “small .22\\n\\npistol,” which was loaded and had a shell in the chamber, from the right pocket of\\n\\nhis jacket. They also found 17 food stamps in the left pocket of Meders’ jacket.\\n\\nAfter reading him his Miranda rights, Boyet asked him if he had any other firearms\\n\\nin the house, and Meders said he had a .357 revolver. The officers obtained that\\n\\nfirearm (a fully loaded Ruger Black Hawk .357 revolver) and the .22 pistol and\\n\\ntook Meders to the station for more questioning.\\n\\n\\n\\n\\n 3\\n Neal Harrell, a special agent with the Georgia Bureau of Investigation, testified that he\\nwent with Byerley to Meders’ house around 11:15 a.m. on October 14, and confirmed that he\\nand Byerley discovered the evidence that Byerley testified about at trial.\\n\\n\\n 10\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 11 of 44\\n\\n\\n Detective Boyet told the jury that at the police station Meders again stated\\n\\nthat he didn’t know anything about the robbery-murder and had not gone to the\\n\\nJiffy Store. He claimed, instead, that he had been at the Best Western and had\\n\\ngone home around midnight. Boyet then informed Meders that Harris had just\\n\\ngiven a statement to detectives that Meders had told him that he “had blew a man’s\\n\\nhead off for $38.00.” Meders denied saying that and told Boyet that Harris was\\n\\n“trying to get him” because he thought Meders was having an affair with his wife.\\n\\nAfter Boyet finished interviewing him, Meders was arrested.\\n\\n Boyet testified that on October 16, Harris came to the police station and said\\n\\nthat he “had received information” that the gun used in the shooting was under\\n\\nMeders’ waterbed. Boyet executed a search warrant at Meders’ house that day and\\n\\nfound a Dan Wesson .357 Magnum revolver “under the center of the [waterbed’s]\\n\\nmattress.” The firearms examiner later concluded that the revolver had fired the\\n\\ntwo bullets that killed the Jiffy Store clerk.\\n\\n Boyet also testified that on November 14, 1988 — a year and one month\\n\\nafter the murder and Meders’ first statement to police, and four months before the\\n\\ntrial — Meders asked to talk with him again. Despite his previous statements\\n\\ndenying that he knew anything about the crime, Meders now told Boyet a different\\n\\nstory. Here’s how Boyet recounted on the witness stand Meders’ new story:\\n\\n He said that he first got with Bill Arnold and Greg Creel on the\\n afternoon of October 13th, 1987. . . . They drank beer, smoked several\\n\\n 11\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 12 of 44\\n\\n\\n joints, got high, got drunk, and they [ ] went to a motel room where\\n Randy Harris was [ ] with a girl. . . .\\n\\n They rode around that afternoon and took him home. He was\\n drunk, passed out on the couch. Around 11:00 [p.m.] they came back\\n to his house. Bill Arnold woke him up and told him they needed him\\n to go with him, and to bring his gun. He told the[m] he didn’t want to\\n go, said we need you to go, get your gun and come with us, said he got\\n his gun, the Dan Wesson revolver out from under the couch, got in the\\n car with them. At that time they went to the Best Western Motel where\\n Randy and Sandra Ruggles were at. At that point [Harris] and [Arnold]\\n got over in the side of the room, were whispering low voices. He\\n couldn’t understand what they were saying. [Arnold, Creel, and\\n Meders] then got in the Roadrunner and left, went riding around, rode\\n around the County. At one point Bill Arnold took the gun, the Dan\\n Wesson, and shot at a truck. They shot at a . . . flower shop . . . on 303,\\n shot a new Chevy truck somewhere on 303. They passed a young man\\n by the name of Keith Bowen on Community Road. [Arnold] asked\\n [Meders] to shoot [Bowen], or give him a gun, he would shoot him, and\\n [Meders] said he got scared and told him he was crazy, and they kept\\n riding. Said they rode several hours still drinking. They pulled into the\\n Jiffy Store to get something to eat at Marshes of Mackay. All three\\n went in. He said Creel went to the back, got something, put it in a\\n microwave oven. He stayed up by the counter, didn’t go any further\\n because he was drunk. Said at that time Bill Arnold pulled out the gun,\\n shot the man, that he fell. He shot him again, and [Meders] said he told\\n him, you shot that man. He said [Arnold] laughed, and said, yes, no\\n witnesses, get the money. Then he said he then took the money out of\\n the cash register. They got in the car and left. After leaving there, they\\n went to Shady Acres Trailer Park. . . . [Creel] and [Arnold] got out of\\n the car there, left him with the car, said he left the gun with [Arnold].\\n He drove directly home, did not go anywhere, and went to bed.\\n\\nMeders also told Boyet that he did not go to Harris’ motel room after the murder,\\n\\nthat Harris had told him later that morning that the best thing he could do is keep\\n\\nhis mouth shut about the shooting, and that Harris had put the gun under Meders’\\n\\nmattress. Boyet testified that Meders said he had waited more than a year to tell\\n\\n\\n 12\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 13 of 44\\n\\n\\nthe police about the incident because he was scared of what would happen if he\\n\\ntold them. Boyet confirmed that he had not found any evidence that Arnold or\\n\\nCreel ever had the gun that killed the store clerk, or any evidence that corroborated\\n\\nMeders’ story about what had happened.\\n\\n Defense counsel then cross-examined Boyet. Boyet stated that when he\\n\\nquestioned Creel and Arnold on October 15 about whether they had shot at a truck\\n\\nas they were riding around during the night of October 13, they both denied it.\\n\\nDefense counsel then asked: “And did you have any reason to, to doubt that they\\n\\nwere telling you the truth?” Boyet responded: “The only thing I had to indicate\\n\\nthat they did do it was, is Jimmy Meders saying that they did.” He added: “There,\\n\\nthere is no other evidence to indicate that they did. There, there are no witnesses\\n\\nthat saw it other than the, the three who were allegedly in the [car], and I have no\\n\\nproof that they did do it.”\\n\\n 2. The Defense Witnesses\\n\\n The State rested, and the defense presented its case. Five witnesses testified\\n\\nfor the defense before Meders himself took the stand. His wife Sherry testified that\\n\\nMeders had passed out from drinking around 10:00 p.m. on October 13, 1987, that\\n\\nArnold came inside their house later that night asking to borrow a gun, and Meders\\n\\nleft the house with him. On cross-examination Sherry Meders admitted telling\\n\\nofficers on October 14 that she did not know whether her husband had left the\\n\\n\\n\\n 13\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 14 of 44\\n\\n\\nhouse during the previous night and that she did not tell them that Arnold came by\\n\\nthe house to pick up Meders or Meders’ gun. She had told the police that Meders\\n\\nhad, among other guns, two .357 caliber guns in the house. She testified that she\\n\\nnever told Harris that the murder weapon was under Meders’ waterbed.\\n\\n Wayne Martin, a friend of Meders, testified that after going by the Best\\n\\nWestern for about 10 minutes on the night of October 13, he and Meders went to\\n\\nMeders’ house to drink some beer. He stated that when he left around 10:00 p.m.\\n\\nMeders was “passed out . . . on the couch.” Martin stated that a couple of months\\n\\nafter the shooting, Meders told him that he had been with Arnold and Creel at the\\n\\ntime of the shooting, that they had his gun, but that he didn’t remember what\\n\\nhappened during the shooting.\\n\\n Meders’ brother and his brother’s wife both testified that they saw Meders\\n\\naround 2:25 a.m. on October 14, that he was with Arnold and Creel then, and that\\n\\nthe three men had a gun in the car. His brother also stated that about six to seven\\n\\nmonths after the shooting, Meders told him that either Arnold or Creel had shot the\\n\\nclerk. Another witness testified that he saw Arnold at a bar around 5:00 or 6:00\\n\\np.m. on October 14, the day of the murder, and that Arnold told him and a few\\n\\nothers that he had to go see Harris and Creel to “see what the deal was” and “get\\n\\nthe story straight.”\\n\\n\\n\\n\\n 14\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 15 of 44\\n\\n\\n Finally, Meders testified on his own behalf. He said that during the\\n\\nafternoon of October 13, 1987, he and Harris took two 10 milligram Valiums each\\n\\nand drank some beer at the auto shop before Arnold and Creel met them at Harris’\\n\\nhouse, where they all drank some more. He stated that Harris gave him $250 for\\n\\nsome work he had done on a car, and Harris also bought a bulldog from Creel for\\n\\n$50. Meders testified that he, Arnold, and Creel “felt like getting drunk” so they\\n\\nwent to the liquor store and bought some alcohol. Around 5:30 p.m., Meders felt\\n\\nlike he had “had enough to drink,” so he stopped drinking — at least for a little\\n\\nwhile. He said that Harris then told him, Arnold, and Creel that he had to go pick\\n\\nhis wife up from work, so Arnold and Creel drove Meders home.\\n\\n Meders testified that later that night, his friend Wayne Martin took him to\\n\\nthe motel room that Harris had rented. Meders and Harris talked for a little while,\\n\\nthen Martin took Meders back home, where Meders drank some beer and passed\\n\\nout on the couch. The next thing Meders recalled was Arnold waking him up\\n\\naround 11:00 or 11:30 p.m. insisting that he “go with him.” Arnold picked him up\\n\\nunder the arms, and then as they were leaving Meders’ house Arnold grabbed the\\n\\nDan Wesson .357 Magnum, which was the murder weapon. They got in the car\\n\\nwith Creel and went to Harris’ motel room. Meders testified that after leaving the\\n\\nmotel, Arnold drove Creel and Meders by two houses. He said that Arnold and\\n\\nCreel had gotten in a fight with some people (one of whom was a man named\\n\\n\\n\\n 15\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 16 of 44\\n\\n\\nKeith Bowen) and “wanted revenge,” and as the three men were driving by those\\n\\ntwo houses, Arnold fired Meders’ gun twice — once at a dark truck parked at one\\n\\nhouse, and the other time at a white truck parked at the other house. Meders then\\n\\ntold Arnold to take him home because he didn’t want to be involved in any trouble.\\n\\n According to Meders, Arnold did not take him home but instead drove to a\\n\\nconvenience store. After that Meders started driving the car, and as he was\\n\\nheading back to his house, he saw his brother and his brother’s wife making a\\n\\ndeposit at a bank “right around the corner from [his] house.” When they stopped at\\n\\nthe bank to talk to Meders’ brother and sister-in-law, Arnold got back in the\\n\\ndriver’s seat. They then drove to another convenience store, and Arnold went in\\n\\nwith Meders’ gun in his pocket while Creel and Meders sat in the car. Meders\\n\\ntestified that they thought Arnold was just “kidding” around by taking the gun\\n\\ninside.\\n\\n Meders testified that after Arnold returned to the car, he drove to the Jiffy\\n\\nStore, and all three men went inside. Meders testified that he and Arnold were\\n\\nstanding near the counter while Creel went to the microwave. He stated that out of\\n\\nnowhere, Arnold “pulled the gun and shot” the clerk twice, then told Meders: “No\\n\\nwitnesses. Get the money.” Meders grabbed the money out of the cash register,\\n\\nand the three men exited the store “pretty quickly,” got in the car, and Arnold\\n\\ndrove to Shady Acres Trailer Park, where he and Creel got out. Meders told\\n\\n\\n\\n 16\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 17 of 44\\n\\n\\nArnold to keep the gun, that he didn’t want it back, and then he drove back to his\\n\\nhouse. He testified that after getting to his house, an officer pulled up and told him\\n\\nthat he had a brake light out. Meders went inside and went to sleep on the couch.\\n\\n Later that morning Harris came by Meders’ house and told him to “go on to\\n\\nwork” and that he would be there shortly. Meders testified that Harris later told\\n\\nhim at the shop that he should keep his mouth shut and “let [it] blow over” because\\n\\nMeders had a wife and child to take care of. Meders went back to his house, and\\n\\nseveral officers showed up. He told the officers multiple times that he did not\\n\\nknow anything about the shooting, which he admitted at trial was not true. Meders\\n\\nwent to the police station around 11:15 that morning and, as he claimed that Harris\\n\\nhad advised him, told the officers again that he did not know anything about the\\n\\nrobbery-murder.\\n\\n Meders acknowledged at trial that he did not tell Detective Boyet that he\\n\\nwitnessed the shooting until more than a year after the murder. He also conceded\\n\\nthat although he did not know how the torn $1 bill from the bait money ended up\\n\\non his television, the officers did find the other two bills of the bait money (the $5\\n\\nbill and the other $1 bill) in his wallet. And he acknowledged that the officers\\n\\nfound the murder weapon under his bed after Harris told them on October 16,\\n\\n1987, exactly where to find it. He claimed that he had no idea how the firearm got\\n\\nthere.\\n\\n\\n\\n 17\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 18 of 44\\n\\n\\n 3. The State’s Rebuttal Witnesses\\n\\n Harris and a Brunswick City police officer testified in rebuttal for the State.\\n\\nHarris admitted that he had previously pleaded guilty to selling marijuana. He also\\n\\ntestified that it was Meders’ wife Sherry who had told him where the murder\\n\\nweapon was.\\n\\n The city police officer testified that around 3:30 a.m. on October 14, 1987,\\n\\nhe saw a vehicle speeding about a quarter mile from Meders’ house, and he later\\n\\nlocated that vehicle at Meders’ house. After he stopped in front of the house\\n\\nMeders came out to see “what was wrong.” The officer asked Meders if he had\\n\\nbeen driving the vehicle, and Meders, who was acting “very, very nervous,” told\\n\\nthe officer that he had just driven it back from the Amoco station where he had\\n\\ncalled his girlfriend, and that he was nervous because his wife “would kill him” if\\n\\nshe found out that he had a girlfriend.\\n\\n 4. The Closing Arguments\\n\\n The State waived its opening argument to the jury but reserved the right to\\n\\nconclude. Defense counsel argued in closing that the State had allowed Harris,\\n\\nArnold, and Creel to “design its case,” and he pointed out inconsistencies between\\n\\ntheir testimonies. He told the jury that he didn’t believe the “Arnold-Creel-Harris\\n\\nversion of this case speaks the truth” and argued that Harris planted the murder\\n\\nweapon under Meders’ bed.\\n\\n\\n\\n 18\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 19 of 44\\n\\n\\n The State told the jurors in its closing argument that they would have to\\n\\njudge the credibility of the witnesses, and that “Randy Harris, Bill Arnold, Greg\\n\\nCreel, [and] the police officers all told the same story all the way down the line\\n\\nfrom day one.” It argued that Meders, his wife, and Martin had made up their\\n\\nstories about a year after the incident. And it noted that Meders had never\\n\\nexplained what he did in the “twenty-five minute[ ]” gap between leaving the\\n\\nShady Acres Trailer Park and arriving at his house. The State argued that what he\\n\\nhad done was stop by the Best Western and tell Harris what he had done, just as\\n\\nHarris had recounted to the jury. The State pointed out that Meders had several\\n\\nopportunities to tell the police what he knew about the crime, but he failed to do so\\n\\nuntil more than a year after the murder — unlike Harris, Arnold, and Creel.\\n\\n 5. The Jury Verdict and Sentence\\n\\n During its deliberations, the jury asked six questions, three of which Meders\\n\\ndiscusses in his briefs to this Court:\\n\\n During the execution of the first search warrant, was the bedroom\\n searched, if so was the waterbed searched?\\n Can fingerprints be taken and if so were they taken on the waterbed\\n mattress??\\n [Were] there any reports filed on the incident of the truck, on Ga Hwy\\n 303, [r]eported between the day after or between then and now, being\\n shot at??\\n\\nThe court told the jury that it could not “respond to you in any regard concerning\\n\\nthe evidence in this case,” and that the jury must base all of its findings on the\\n\\n\\n 19\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 20 of 44\\n\\n\\nevidence that had been presented to it. After two hours of deliberations, the jury\\n\\nreturned a guilty verdict on the charges of malice murder and armed robbery.\\n\\nMeders was sentenced to death for the murder offense and to a consecutive life\\n\\nsentence for the armed robbery offense. (There are no sentence stage issues in this\\n\\nappeal.)\\n\\n C. The Direct Appeal and Remand Proceedings\\n\\n Meders appealed his convictions and sentences to the Georgia Supreme\\n\\nCourt. See Meders v. State, 389 S.E.2d 320 (Ga. 1990). Although his trial counsel\\n\\ninitially represented him in the appeal, other counsel appeared for him and filed a\\n\\nnew brief on his behalf that “raised questions about the effectiveness of trial\\n\\ncounsel.” Id. at 324. Because the ineffective assistance of trial counsel was raised\\n\\nfor the first time on appeal by Meders’ new attorney, the Georgia Supreme Court\\n\\ngranted the State’s request to remand the case to the trial court for a hearing on that\\n\\nissue. Id. at 325. Before doing so, it rejected all of Meders’ other claims of error.\\n\\nId. at 321–24.\\n\\n At the remand hearing Meders contended that his trial counsel was\\n\\nineffective during the guilt phase for:\\n\\n [1] failing to use police incident reports found in the prosecutor’s open\\n file and failing to develop testimony of the shootings near Highway 303\\n that corroborated [his] trial testimony and impeached the testimony of\\n the State’s key witnesses; [2] failing to utilize prior inconsistent\\n recorded statements of the State’s three eyewitnesses found in the\\n prosecutor’s open file; [3] failing to object to the admission of an\\n\\n 20\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 21 of 44\\n\\n\\n unadjudicated citation for cocaine sales; [and] [4] failing to object to\\n the admission and use of food stamps based upon a note in the\\n prosecutor’s open file that the food stamps could not be linked to the\\n robbery.\\n\\nThe evidence presented at the hearing included the complete files of the prosecutor\\n\\nand of Meders’ trial counsel as well as documents from the Glynn County Police\\n\\nDepartment relating to Meders’ case.\\n\\n The prosecutor’s file contained pretrial statements from Harris, Arnold, and\\n\\nCreel, including transcripts of Harris’ October 14, 1987 interview and of Arnold’s\\n\\nand Creel’s October 15 interviews. There were several inconsistencies between\\n\\nthose pretrial statements and trial testimony. For example, in their pretrial\\n\\nstatements Arnold and Creel told the police that they had taken Meders home and\\n\\npicked him up on the night of October 13, but in their trial testimony they denied\\n\\ndoing that. Creel’s pretrial statement showed that he told the police he knew\\n\\nMeders had a gun when Meders went into the Jiffy Store, but he testified at trial\\n\\nthat he did not know about the gun until Meders actually shot the clerk.\\n\\n A report prepared by Boyet shows that when the police went to Harris’ body\\n\\nshop around 11:00 a.m. on October 14, Harris told them that he had not seen\\n\\nMeders since the night before and he did not say anything about the shooting or\\n\\nMeders’ involvement in it. But at the police station just over an hour later, Harris\\n\\ntold the police that Meders had stopped by his motel room around 3:00 to 4:00 that\\n\\nmorning and told him that he had just “killed a man over $38.” Harris also told the\\n\\n 21\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 22 of 44\\n\\n\\nofficers that Meders did not say where (that is, in what part of the body) he had\\n\\nshot the clerk but “just [that] he shot him.” At trial Harris had testified that Meders\\n\\nstopped by his motel room around 3:15 a.m. and told him that: “I just blowed a\\n\\nman’s head off over $38.00.”\\n\\n The pretrial statements also show that Harris told the officers on October 14\\n\\nthat he had no idea where Meders would keep the murder weapon. Two days later\\n\\nhe told Boyet that he “had been thinking about it and the only place he could think\\n\\nof where Meders would have hidden the gun he used was the water bed in\\n\\nMeders[’] bedroom.” At trial, however, he had testified that Meders’ wife Sherry\\n\\nhad told him where the gun was located.\\n\\n The prosecutor’s file also contained two police reports that supported\\n\\nMeders’ trial testimony about the truck shootings and contradicted the testimony of\\n\\nArnold, Creel, and Detective Boyet on that subject. One police report stated that\\n\\naround 12:30 a.m. on October 14, a car passed by the complainant’s house several\\n\\ntimes and someone in the car “fired a shot” on the last pass. The bullet struck the\\n\\nwall near the house, missing the truck parked in the driveway “by about a foot.”\\n\\nThe complainant’s son was Keith Bowen — the same person that Meders testified\\n\\nhad been in a fight with Arnold and Creel. See supra at 16. The other report stated\\n\\nthat around 1:30 that same morning, someone “fired a round” at the complainant’s\\n\\ntruck, and that the complainant “feels that the incident was caused by Larry\\n\\n\\n\\n 22\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 23 of 44\\n\\n\\nBrockington and Greig [sic] Creel due to some problems he has had with them in\\n\\nthe past.”\\n\\n Finally, the prosecutor’s file also contained a note that stated “[u]nable to\\n\\ntrace any food coupons to store,” as well as a report by a Glynn County police\\n\\nofficer stating that Sherry (Meders’ wife) had told the officer that she and Meders\\n\\nwere legally receiving food stamps. Less favorable to Meders, that same report\\n\\nindicated that during the first search of Meders’ house the officers had looked\\n\\n“around the bottom outside area” of the waterbed but not underneath it.\\n\\n In addition to that evidence, Meders presented twelve witnesses at the\\n\\nremand hearing.4 His counsel at the hearing questioned several of those witnesses\\n\\nabout the shootings involving the two trucks and about the witnesses’ relationships\\n\\nwith Meders, Arnold, or Creel. One witness — the owner of one of the trucks —\\n\\ntestified that he had a bad relationship with Creel, and another witness testified that\\n\\nthe officer who took the police report about one of the truck shootings told her that\\n\\nthe bullet from the truck shooting “was the same type [of] bullet that had killed”\\n\\nthe Jiffy Store clerk.\\n\\n Meders’ counsel also questioned Boyet about the police reports and the\\n\\ninconsistencies between the pretrial statements and the trial testimony of Harris,\\n\\n\\n 4\\n Because Meders’ trial counsel was hospitalized shortly before the remand hearing, he\\ncould not be called as a witness. Nor could he be called as a witness in the later state habeas\\nproceedings because he died before they began.\\n\\n\\n 23\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 24 of 44\\n\\n\\nArnold, and Creel. Boyet confirmed that before the trial he had talked to Arnold\\n\\nand Creel about the truck shootings and that they both had denied any involvement\\n\\nin them. Boyet conceded that he was unable to link to the Jiffy Store any of the\\n\\nfood stamps that were admitted into evidence, he had never testified he could.\\n\\n No copies of the pretrial statements of Arnold, Creel, or Harris were found\\n\\nin Meders’ trial counsel’s file. And nothing in his trial counsel’s file suggested\\n\\nthat he had reviewed those witnesses’ pretrial statements. Nor did his file contain\\n\\ncopies of the police reports. Based on the evidence presented at the remand\\n\\nhearing, Meders argued that his trial counsel was ineffective for failing to use the\\n\\npretrial statements and police reports to corroborate Meders’ testimony and\\n\\n“undercut the credibility of the [State’s] prime accusers against [him],” and for\\n\\nfailing to object to the admission of the food stamps and the citation (that was\\n\\nfound in his wallet) for the sale of cocaine. He contended that those failures\\n\\nprejudiced him, and he asked for a new trial.\\n\\n The state trial court ruled that Meders had failed to show that he was\\n\\nprejudiced by his trial counsel’s alleged deficiencies. As a result, it denied his\\n\\nclaim that his counsel was ineffective during the guilt phase of his trial. The\\n\\nGeorgia Supreme Court affirmed. Meders v. State, 411 S.E.2d 491 (Ga. 1992). As\\n\\nto Meders’ ineffective assistance claim, the Georgia Supreme Court’s ruling stated\\n\\nin its entirety: “The trial court’s nine-page order persuasively demonstrates that\\n\\n\\n\\n 24\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 25 of 44\\n\\n\\nMeders has failed to overcome the strong presumption that Meders’ trial counsel\\n\\nperformed effectively.” Id. at 492 (quotation marks omitted). The United States\\n\\nSupreme Court denied Meders’ petition for a writ of certiorari. Meders v. Georgia,\\n\\n506 U.S. 837, 113 S. Ct. 114 (1992). That ended the direct appeal.\\n\\n D. The State Habeas Proceedings\\n\\n A couple of years later, in April 1994, Meders filed a state habeas petition.\\n\\nAfter conducting evidentiary hearings, the state habeas court granted relief on\\n\\nMeders’ claim alleging ineffective assistance of counsel at the guilt phase, but it\\n\\ndenied relief on his other claims. The State and Meders both appealed. The\\n\\nGeorgia Supreme Court reversed the grant of relief on Meders’ ineffective\\n\\nassistance claim, explaining that the claim was procedurally barred because it had\\n\\nalready been litigated on the merits in the direct appeal. Schofield v. Meders, 632\\n\\nS.E.2d 369, 372 (Ga. 2006); see id. at 373 (“The record in this case clearly\\n\\nestablishes that the habeas court granted relief on claims that had been raised in\\n\\nessentially the identical form in the hearing held on remand to the trial court.”). It\\n\\naffirmed the state habeas court’s denial of relief on the other claims and reinstated\\n\\nMeders’ convictions and sentences. Id. at 372.\\n\\n E. The Federal Habeas Proceedings\\n\\n Meders filed a 28 U.S.C. § 2254 petition in July 2007 and an amended\\n\\npetition in January 2012. The district court ruled that Meders’ trial counsel’s\\n\\n\\n\\n 25\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 26 of 44\\n\\n\\nperformance at the guilt phase was deficient but concluded that the trial court’s\\n\\nruling on remand in the direct appeal that Meders could not establish prejudice was\\n\\nnot an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104\\n\\nS. Ct. 2052 (1984). See 28 U.S.C. § 2254(d)(1). On that basis it denied his\\n\\npetition. Meders later moved for a certificate of appealability on several claims,\\n\\nand the district court granted one on a single general issue: whether Meders’ trial\\n\\ncounsel was ineffective during the guilt phase of his trial.\\n\\n II. DISCUSSION\\n\\n For a third of a century it has been established that counsel does not render\\n\\nineffective assistance unless he performs outside “the wide range of reasonable\\n\\nprofessional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Even\\n\\nthen, the claim is not established and no relief is due unless the petitioner\\n\\naffirmatively proves that the errors of counsel had not just “some conceivable\\n\\neffect on the outcome of the proceeding” but “that they actually had an adverse\\n\\neffect on the defense.” Id. at 693, 104 S. Ct. at 2067.\\n\\n As for how adverse, and how likely, the effect of the attorney’s errors must\\n\\nbe: “The defendant must show that there is a reasonable probability that, but for\\n\\ncounsel’s unprofessional errors, the result of the proceeding would have been\\n\\ndifferent. A reasonable probability is a probability sufficient to undermine\\n\\nconfidence in the outcome.” Id. at 694, 104 S. Ct. at 2068; see also Harrington v.\\n\\n\\n\\n 26\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 27 of 44\\n\\n\\nRichter, 562 U.S. 86, 112, 131 S. Ct. 770, 792 (2011) (“The likelihood of a\\n\\ndifferent result must be substantial, not just conceivable.”).\\n\\n As difficult as it is to prevail on an ineffective assistance prejudice issue in\\n\\nthe first court to decide it, the Antiterrorism and Effective Death Penalty Act of\\n\\n1996 makes it even harder to succeed on that issue in a federal habeas proceeding\\n\\nafter a state court has ruled that the petitioner failed to show prejudice. To obtain\\n\\nhabeas relief, the petitioner must show that the state court’s ruling “resulted in a\\n\\ndecision that was contrary to, or involved an unreasonable application of, clearly\\n\\nestablished Federal law, as determined by the Supreme Court of the United States.”\\n\\n28 U.S.C. § 2254(d)(1).5 That is a highly deferential standard that is intentionally\\n\\ndifficult to meet. See Harrington, 562 U.S. at 102, 131 S. Ct. at 786; Trepal v.\\n\\nSec’y, Fla. Dep’t of Corr., 684 F.3d 1088, 1107 (11th Cir. 2012); see also White v.\\n\\nWheeler, 577 U.S. __, 136 S. Ct. 456, 460 (2015) (“This Court, time and again, has\\n\\ninstructed that AEDPA, by setting forth necessary predicates before state-court\\n\\njudgments may be set aside, erects a formidable barrier to federal habeas relief for\\n\\nprisoners whose claims have been adjudicated in state court.”) (quotation marks\\n\\nomitted).\\n\\n\\n\\n 5\\n A petitioner may, of course, also prevail under AEDPA by showing that the state\\ncourt’s ruling “resulted in a decision that was based on an unreasonable determination of the\\nfacts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).\\nBecause Meders makes no argument under that alternative provision, we will not discuss it\\nfurther.\\n\\n\\n 27\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 28 of 44\\n\\n\\n Under AEDPA, error is not enough; even clear error is not enough. Virginia\\n\\nv. LeBlanc, 582 U.S. __, 137 S. Ct. 1726, 1728 (2017) (“In order for a state court’s\\n\\ndecision to be an unreasonable application of this Court’s case law, the ruling must\\n\\nbe objectively unreasonable, not merely wrong; even clear error will not suffice.”)\\n\\n(quotation marks omitted). To overcome AEDPA deference under § 2254(d)(1),\\n\\nthe petitioner must “show that the state court’s ruling . . . was so lacking in\\n\\njustification that there was an error well understood and comprehended in existing\\n\\nlaw beyond any possibility for fairminded disagreement.” Id. “[I]f some\\n\\nfairminded jurists could agree with the state court’s decision, although others\\n\\nmight disagree, federal habeas relief must be denied.” Holsey v. Warden, Ga.\\n\\nDiagnostic Prison, 694 F.3d 1230, 1257 (11th Cir. 2012) (quotation marks\\n\\nomitted).\\n\\n The Georgia Supreme Court denied Meders’ guilt stage ineffective\\n\\nassistance of counsel claim on the merits. See Meders, 411 S.E.2d at 492. It did\\n\\nso in the appeal from the order entered by the state trial court on remand during the\\n\\ndirect appeal. See id. Because it affirmed on the basis of the trial court’s order,\\n\\nsee id, we “look through” the Georgia Supreme Court’s decision to that trial court\\n\\norder. See Wilson v. Sellers, 584 U.S. __, 138 S. Ct. 1188, 1192 (2018).\\n\\n Meders concedes that § 2254(d)(1) deference is due the state trial court’s\\n\\nruling on remand regarding prejudice. See, e.g., Appellant’s Br. at 33 (“The issue\\n\\n\\n\\n 28\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 29 of 44\\n\\n\\nin this case, then, is whether the state court’s conclusion that Meders failed to\\n\\nprove sufficient prejudice involved an unreasonable application of Strickland, as\\n\\ndefined by § 2254(d)(1).”). The measure of deference is whether “the state court’s\\n\\nruling . . . was so lacking in justification that there was an error well understood\\n\\nand comprehended in existing law beyond any possibility for fairminded\\n\\ndisagreement.” LeBlanc, 137 S. Ct. at 1728 (citation omitted); Holsey, 694 F.3d at\\n\\n1257.\\n\\n “Deciding whether a state court’s decision involved an unreasonable\\n\\napplication of federal law . . . requires the federal habeas court to train its attention\\n\\non the particular reasons — both legal and factual — why state courts rejected a\\n\\nstate prisoner’s federal claims, and to give appropriate deference to that decision.”\\n\\nWilson, 138 S. Ct. at 1191–92 (quotation marks and citations omitted). That does\\n\\nnot mean we are to flyspeck the state court order or grade it. What it means is we\\n\\nare to focus not merely on the bottom line ruling of the decision but on the reasons,\\n\\nif any, given for it. The bottom line here is the ruling by the state trial court that\\n\\ncounsel’s failure to use certain pretrial statements of witnesses and police reports\\n\\ncoupled with their failure to object to certain evidence did not amount to\\n\\nineffective assistance of counsel. The reason the state court gave for that ruling is\\n\\nthat there was no reasonable probability of a different result if counsel had acted as\\n\\nMeders claimed they should have. The reason there wasn’t, the court explained, is\\n\\n\\n\\n 29\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 30 of 44\\n\\n\\nthat the evidence counsel failed to present was cumulative and outweighed by the\\n\\nstrong evidence of guilt, and the objections that they failed to make would have\\n\\nbeen futile or otherwise would have made no difference anyway. See Strickland,\\n\\n466 U.S. at 692–96, 104 S. Ct. at 2066–69.\\n\\n Notwithstanding his concession that deference is due, at other points in his\\n\\nbriefs Meders appears to implicitly argue either that deference is not due, or\\n\\nperhaps that deference does not mean much. He does so by engaging in a line-by-\\n\\nline critique of the state court’s reasoning, pointing out evidence that was not\\n\\nmentioned in the state court’s order or was not given the weight he feels it\\n\\ndeserves. See, e.g., Appellant’s Reply Br. at 7–8 (taking issue with how the state\\n\\ntrial court summarized the evidence against him); id. at 16 (arguing that the state\\n\\ntrial court’s order “gives no indication” that it considered facts brought to light by\\n\\nthe impeachment evidence presented at the remand hearing); Appellant’s Br. at 36\\n\\n(arguing that the court focused on the wrong evidence and “failed to consider the\\n\\nmost compelling issues framed by the evidence”). That is not the proper approach.\\n\\n This Court has stressed that in applying AEDPA deference federal courts are\\n\\nnot to take a magnifying glass to the state court opinion or grade the quality of it.\\n\\nWe have emphasized time and again that we are “not to read state court opinions as\\n\\nif we were grading papers.” Rimmer v. Sec’y, Fla. Dep’t of Corr., 876 F.3d 1039,\\n\\n1055 (11th Cir. 2017) (quotation marks omitted); see also, e.g., Jones v. Sec’y, Fla.\\n\\n\\n\\n 30\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 31 of 44\\n\\n\\nDep’t. of Corr., 834 F.3d 1299, 1311 (11th Cir. 2016) (“[W]e have cautioned that\\n\\noveremphasis on the language of a state court’s rationale would lead to a grading\\n\\npapers approach that is outmoded in the post-AEDPA era.”) (quotation marks\\n\\nomitted); Holland v. Florida, 775 F.3d 1294, 1311 (11th Cir. 2014) (“We do not\\n\\nread state court opinions as if we were grading papers, and must apply AEDPA\\n\\ndeference absent a conspicuous misapplication of Supreme Court precedent.”)\\n\\n(quotation marks omitted); cf. Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245,\\n\\n1255 (11th Cir. 2002) (“Reading into the statute a requirement that state courts\\n\\nspell out their rationale would run counter to the main thrust of [AEDPA].”).\\n\\n We have explicitly rejected the proposition that a state court decision\\n\\ninvolves an unreasonable application of federal law and is not entitled to deference\\n\\nunless that court’s opinion on its face “shows its work” by explicitly mentioning\\n\\n“all relevant circumstances” that the defendant argues in support of relief. See Lee\\n\\nv. Comm’r, Ala. Dep’t of Corr., 726 F.3d 1172, 1211 (11th Cir. 2013). That\\n\\nproposition captures Meders’ position. Our rejection of it follows the Supreme\\n\\nCourt’s teaching that “readiness to attribute error” to a state court decision is\\n\\nincompatible with both “the presumption that state courts know and follow the\\n\\nlaw” and AEDPA’s “highly deferential standard for evaluating state-court rulings,\\n\\nwhich demands that state-court decisions be given the benefit of the doubt.”\\n\\n\\n\\n\\n 31\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 32 of 44\\n\\n\\nWoodford v. Visciotti, 537 U.S. 19, 24, 123 S. Ct. 357, 360 (2002) (citation\\n\\nomitted) (internal quotation marks omitted).\\n\\n The Supreme Court in Wilson held that presumptively we should look\\n\\nthrough a silent higher state court decision to an explicitly reasoned lower court\\n\\none in determining the reasons for the decision. Wilson, 138 S. Ct. at 1193–96.\\n\\nBut Wilson was about which state court decision we are to look at if the lower state\\n\\ncourt gives reasons and the higher state court does not. It was not about the\\n\\nspecificity or thoroughness with which state courts must spell out their reasoning\\n\\nto be entitled to AEDPA deference or the level of scrutiny that we are to apply to\\n\\nthe reasons that they give. Our no-grading-papers, anti-flyspecking rule remains\\n\\nthe law of the circuit. See Main Drug, Inc. v. Aetna U.S. Healthcare, Inc., 475\\n\\nF.3d 1228, 1230 (11th Cir. 2007) (“Obedience to a Supreme Court decision is one\\n\\nthing, extrapolating from its implications a holding on an issue that was not before\\n\\nthat Court in order to upend settled circuit law is another thing.”); Garrett v. Univ.\\n\\nof Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1292 (11th Cir. 2003) (“While\\n\\nan intervening decision of the Supreme Court can overrule the decision of a prior\\n\\npanel of our court, the Supreme Court decision must be clearly on point.”).\\n\\n After all, the Supreme Court itself has also held that “federal courts have no\\n\\nauthority to impose mandatory opinion-writing standards on state courts.” Johnson\\n\\nv. Williams, 568 U.S. 289, 300, 133 S. Ct. 1088, 1095 (2013). In so holding, the\\n\\n\\n\\n 32\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 33 of 44\\n\\n\\nCourt cautioned that “[t]he caseloads shouldered by many state appellate courts are\\n\\nvery heavy, and the opinions issued by these courts must be read with that factor in\\n\\nmind.” Id. at 300, 133 S. Ct. at 1095–96 (footnote omitted). Not only that, but the\\n\\nSupreme Court has held that AEDPA deference is due even to those state court\\n\\nrulings for which no rationale or reasoning at all is given. See Harrington, 562\\n\\nU.S. at 100, 131 S. Ct. at 785. It would be irrational to afford deference to a\\n\\ndecision with no stated explanation but not afford deference to one that states\\n\\nreasons, albeit not as thoroughly as it could have.\\n\\n Only the clearest indication that Wilson overruled the Supreme Court’s\\n\\nprevious decisions, such as Johnson, would warrant ignoring those decisions, and\\n\\nthere is no indication at all that Wilson did so. See Hohn v. United States, 524\\n\\nU.S. 236, 252–53, 118 S. Ct. 1969, 1978 (1998) (“Our decisions remain binding\\n\\nprecedent until we see fit to reconsider them, regardless of whether subsequent\\n\\ncases have raised doubts about their continuing vitality.”); Agostini v. Felton, 521\\n\\nU.S. 203, 237, 117 S. Ct. 1997, 2017 (1997) (“We do not acknowledge, and we do\\n\\nnot hold, that other courts should conclude our more recent cases have, by\\n\\nimplication, overruled an earlier precedent.”); Rodriguez de Quijas v.\\n\\nShearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 1921–22 (1989)\\n\\n(“If a precedent of this Court has direct application in a case, yet appears to rest on\\n\\nreasons rejected in some other line of decisions, the Court of Appeals should\\n\\n\\n\\n 33\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 34 of 44\\n\\n\\nfollow the case which directly controls, leaving to this Court the prerogative of\\n\\noverruling its own decisions.”).\\n\\n Applying AEDPA deference to the state trial court decision that Meders\\n\\nfailed to establish prejudice for Strickland purposes, the question is whether every\\n\\nfairminded jurist would conclude that prejudice has been established. See\\n\\nWilliamson v. Fla. Dep’t of Corr., 805 F.3d 1009, 1016 (11th Cir. 2015) (“To\\n\\nestablish prejudice [where AEDPA applies, a petitioner] has to show that every\\n\\nfair-minded jurist would conclude that there is a reasonable probability that, but for\\n\\ncounsel’s unprofessional errors, the result of the proceeding would have been\\n\\ndifferent.”) (quotation marks omitted). So long as any fairminded jurist could\\n\\nagree with the state court’s ruling, we must deny federal habeas relief. With that\\n\\nstandard of deference in mind, we turn to the facts established at trial and in the\\n\\nevidentiary hearing in the state trial court on remand that are relevant to the\\n\\nineffective assistance of counsel claims.\\n\\n A. Failure to Use the Pretrial Statements and the Police Reports\\n\\n Meders contends that his trial counsel was ineffective for failing to use\\n\\ncertain pretrial statements and police reports to impeach several of the State’s\\n\\nwitnesses, and that the state trial court’s determination that he had failed to\\n\\nestablish prejudice “reflects a profound misvaluation of the impeachment material\\n\\ntrial counsel failed to use.” The State, while acknowledging that new evidence\\n\\n\\n\\n 34\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 35 of 44\\n\\n\\ndoes call into question “certain areas of credibility” of some of its witnesses,\\n\\ncontends that evidence is not enough to repair Meders’ credibility or to refute the\\n\\noverwhelming evidence showing his guilt.\\n\\n As the State recognizes, when read against their testimony at trial, the\\n\\npretrial statements and the police reports weaken the credibility of Harris, Creel,\\n\\nArnold, and Detective Boyet. Harris, for example, first told the police around\\n\\n11:00 a.m. on October 14 that he hadn’t seen Meders since the previous night. An\\n\\nhour later he told the police that between 3:00 to 4:00 that morning Meders had\\n\\nstopped by his motel room and told him he shot the store clerk, but said that\\n\\nMeders had not mentioned that he shot the clerk in the head. But Harris later\\n\\ntestified at trial that when Meders had stopped by his motel room, Meders told him\\n\\nhe had shot the store clerk in the head. He also first told the police he didn’t know\\n\\nwhere the murder weapon was located, then told them two days later that he had\\n\\nremembered Meders liked to hide things under his waterbed “where they would\\n\\nnever be found,” and finally testified at trial that Sherry Meders had told him that\\n\\nthe gun was under the waterbed.\\n\\n Although it’s clear that Harris made inconsistent statements, it’s not clear\\n\\nthat he was lying about Meders confessing that he had just “blowed a man’s head\\n\\noff over $38.00.” Harris testified that Meders took $38 — no more, no less —\\n\\nfrom the Jiffy Store. But there is no evidence that Arnold or Creel knew how\\n\\n\\n\\n 35\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 36 of 44\\n\\n\\nmuch money was taken from the Jiffy Store. And Meders admitted at trial that he\\n\\nhad taken the money from the cash register and that nothing was said in the car\\n\\nfrom “the time we left the store till we reached Shady Acres Trailer Park.” So\\n\\nArnold and Creel could not have told Harris how much money Meders took\\n\\nbecause they did not know how much money he took. As a result, either Meders\\n\\ntold Harris that he took $38 from the store (and lied to Boyet when denying that) or\\n\\nHarris miraculously guessed the precise amount of cash that Meders stole from the\\n\\nstore.\\n\\n In a similar vein, Harris’ incentive to lie about who committed the robbery-\\n\\nmurder was much weaker than that of Meders, Arnold, or Creel. Arnold and Creel\\n\\nadmitted that they were present at the scene of the murder, putting them in some\\n\\njeopardy of being convicted of that crime. Harris, by contrast, undisputedly was\\n\\nnot present during the crime, nor was there any evidence suggesting that he knew it\\n\\nwas going to happen. No matter whose version of the events the jury found was\\n\\ntrue, Harris did not face conviction for the capital crime of robbery-murder and a\\n\\ndeath sentence. And a rational jury in deciding whether to believe him or Meders\\n\\nwould take into account that he had far less incentive to lie than Meders, who was\\n\\nfacing a death sentence, did.\\n\\n Still, Harris could have been impeached with the evidence Meders’ trial\\n\\ncounsel did not present. And Arnold, Creel, and Detective Boyet also could have\\n\\n\\n\\n 36\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 37 of 44\\n\\n\\nbeen impeached with the evidence that was not presented. Arnold’s and Creel’s\\n\\npretrial statements contradicted some of their testimony at trial. The police reports\\n\\nfrom the prosecutor’s file not only undermined the testimonies of Arnold, Creel,\\n\\nand Boyet about the truck shootings but also supported Meders’ testimony about\\n\\nthose shootings. And the jury’s question about whether any reports were filed\\n\\nabout the truck shootings suggests that it was interested in that subject. The jury\\n\\nquestions about whether the waterbed was searched when officers first searched\\n\\nthe house and whether fingerprints were lifted from it suggest that the jury was\\n\\nalso interested in that.\\n\\n Despite all of that, there was still undisputed evidence in the record pointing\\n\\nto Meders’ guilt. For example, the two bullets that struck the victim were fired\\n\\nfrom the Dan Wesson .357 Magnum revolver that was found under Meders’\\n\\nwaterbed. Meders even confirmed at trial that the .357 Magnum “was the weapon\\n\\nthat was used to kill the [store clerk].” He acknowledged that he owned that\\n\\nweapon, and there was no evidence that anyone had planted it under his waterbed.\\n\\n The undisputed facts about what happened to the proceeds of the robbery are\\n\\nstrong evidence of Meders’ guilt. After all, he admitted to the jury that he was the\\n\\none who took the money from the Jiffy Store: “I got the money out of the cash\\n\\nregister.” And he was the only one who kept any of that money. The Jiffy Store’s\\n\\nbait money was found in his possession. Meders admitted that two of the three bait\\n\\n\\n\\n 37\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 38 of 44\\n\\n\\nmoney bills were found in his wallet. The third bait bill was found on his\\n\\ntelevision. If, as Meders claimed in his testimony, Arnold actually shot the store\\n\\nclerk during the robbery, it seems highly unlikely that Arnold would not have\\n\\nended up with any of the stolen money. Meders testified that after the crime, he\\n\\ninsisted that Arnold keep the firearm that belonged to Meders because he “didn’t\\n\\nwant it back,” but he never explained why he didn’t insist that Arnold take the\\n\\ncash, which was the proceeds of the crime.\\n\\n That the murder weapon was found under Meders’ waterbed evidences his\\n\\nguilt. And even if we assume that it was put there by someone other than Meders,\\n\\nas he implied at trial, the fact remains that he admitted to owning the weapon that\\n\\nfired the bullets that killed Anderson. He admitted to being present at the scene of\\n\\nthe crime. And he admitted to having in his possession all of the money taken\\n\\nfrom the cash register. And although the evidence that trial counsel did not present\\n\\nwould have been helpful in impeachment, none of it substantially undermined the\\n\\nproof of Meders’ guilt. Whether Arnold and Creel shot at the trucks and whether\\n\\nthey dropped Meders off at his house at some point before the murder does not\\n\\nchange the undisputed facts that point to Meders’ guilt. The evidence establishing\\n\\nthat Meders committed the murder remains strong.\\n\\n Even though the police reports corroborated some of Meders’ testimony, the\\n\\nreports would not have repaired his credibility. Meders lied to the police several\\n\\n\\n\\n 38\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 39 of 44\\n\\n\\ndifferent times, and he acknowledged as much at trial. He testified that he told the\\n\\nofficer who pulled up at his house after the shooting that he had just gone to call\\n\\nhis girlfriend and he was nervous because his wife would kill him if she found out.\\n\\nThat was a lie, as Meders admitted at trial. And when police officers questioned\\n\\nhim at his house hours after the murder, he told them he did not know anything\\n\\nabout the shooting. That was also a lie, as Meders admitted at trial. Hours later at\\n\\nthe police station, he again told Detective Boyet he knew nothing about the\\n\\nshooting. Same lie retold, as Meders later admitted at trial.\\n\\n A year and a month after his arrest Meders reversed a year-long course of\\n\\nlies and admitted to Boyet that he was with Arnold and Creel at the Jiffy Store at\\n\\nthe time of the murder. He attempted to explain away his previous lies about that\\n\\nby saying he had simply been following Harris’ advice to deny any involvement in\\n\\nthe crime.6 He was the only one out of the three men involved in the crime who\\n\\ninitially denied having any knowledge of it to persist in that lie for more than a\\n\\nyear. Meders also lied to the police about the murder weapon. When asked at the\\n\\n\\n 6\\n That Meders would follow Harris’ advice is hard to square with his purported belief that\\nHarris was out to get him for allegedly having an affair with Harris’ wife.\\n Meders argues that in a contest of credibility a jury should not believe Harris’ testimony\\nincriminating him because Harris initially failed to mention to the police anything about Meders’\\ninvolvement in the murder but an hour later told them that Meders said he had “killed a man over\\n$38.” If Harris’ “lie,” which he corrected within an hour, supplies “good reason to doubt” his\\ntestimony, Meders’ lies about having no knowledge of the crime, which he failed to correct for\\n13 months, give bountiful reason to doubt Meders’ testimony and decide the contest of\\ncredibility in favor of Harris.\\n\\n\\n 39\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 40 of 44\\n\\n\\npolice station the day of the robbery and murder what firearms he owned, he listed\\n\\nseveral guns, failing to mention only one –– his Dan Wesson .357 Magnum that\\n\\nwas the murder weapon.\\n\\n Meders has failed to show that had his trial counsel used all of the\\n\\nimpeachment material during the guilt phase of his trial, every fairminded jurist\\n\\nwould conclude that there is a “substantial, not just conceivable,” likelihood that\\n\\nthe result of his trial would have been different. See Harrington, 562 U.S. at 112,\\n\\n131 S. Ct. at 792. We are not convinced that every reasonable jurist’s confidence\\n\\nin the outcome of the trial would have been undermined. See Strickland, 466 U.S.\\n\\nat 687, 104 S. Ct. at 2064. The state trial court’s prejudice determination was not\\n\\nunreasonable.\\n\\n B. Failure to Object to the Food Stamps and the Cocaine Citation\\n\\n Meders also argues that trial counsel’s failure to object to the introduction of\\n\\nevidence that he had food stamps or to argue to the jury that they could not be\\n\\nlinked to the robbery also amounted to ineffective assistance. The Jiffy Store\\n\\nmanager testified that food stamps were taken from the store, although she could\\n\\nnot say how many food stamps were taken. And on the witness stand, Meders\\n\\nconceded that food stamps were found in his jacket just hours after the crime. In\\n\\naddition, Creel testified that after they got to the trailer park minutes after the\\n\\n\\n\\n\\n 40\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 41 of 44\\n\\n\\nshooting, Meders tried to give him and Arnold some of the food stamps that he had\\n\\ntaken from the store.\\n\\n Given all of that testimony, there was enough evidence to link the food\\n\\nstamps to the robbery. They were admissible and an objection to them would have\\n\\nbeen futile. The state court found that counsel’s failure to object to the\\n\\nintroduction of the food stamps was neither deficient performance nor prejudicial.\\n\\nThat is not only reasonable but also correct. It is not ineffective assistance of\\n\\ncounsel to fail to make an objection that is not due to be sustained. See Green v.\\n\\nGeorgia, 882 F.3d 978, 987 (11th Cir. 2018) (holding that the petitioner could not\\n\\npossibly have suffered Strickland prejudice where the objection that was not made\\n\\nwould have been futile); Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1297 (11th Cir.\\n\\n2017) (stating that “an attorney will not be held to have performed deficiently for\\n\\nfailing to perform a futile act, one that would not have gotten his client any relief”).\\n\\n As for counsel’s failure to argue to the jury that the food stamps found in\\n\\nMeders’ possession had not been positively connected to the robbery, it is not\\n\\nprejudicial for an attorney to fail to point out to the jury something that is obvious\\n\\nfrom the evidence. No one said that those food stamps could be traced to the store\\n\\nthat had been robbed. Reasonable jurists could find, as the state court did, that\\n\\nMeders has failed to show that if counsel had objected to the food stamps or argued\\n\\nthat they had not been identified as the ones taken in the robbery, Meders would\\n\\n\\n\\n 41\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 42 of 44\\n\\n\\nhave been acquitted. Cf. Mansfield v. Sec’y, Dep’t of Corr., 679 F.3d 1301, 1311–\\n\\n12 (11th Cir. 2012) (holding that the district court should have deferred to the state\\n\\ncourt’s finding that “credited the testimony indicating that the food stamps found\\n\\nin [the defendant’s] room belonged to [the victim]” despite the fact that “the\\n\\nevidence did not establish with certainty that the food stamps found in [the\\n\\ndefendant’s] room belonged to [the victim]”).\\n\\n The state court rejected Meders’ ineffective assistance of counsel claim\\n\\ninvolving the failure to object to the admission of the cocaine citation seized from\\n\\nhis wallet on the ground that he had failed to establish prejudice. Although that\\n\\ncitation was admitted as evidence and given to the jury (along with other\\n\\ndocumentary evidence), it was never mentioned during the trial. Not once. Not\\n\\nonly that, but other evidence established that Meders had used and purchased\\n\\ndrugs. He admitted to the jury that he “smoked a little bit of dope” (marijuana)\\n\\nduring the afternoon of October 13, 1987. He also told the jury that he “had been\\n\\neating, or, well, what you call eating, had been taking some of them Valiums that\\n\\nday, earlier that day.” They were 10 milligram Valiums, he said, helpfully\\n\\ninforming everyone from the witness stand that a 10 milligram Valium “is actually\\n\\nthe biggest Valium you can get.” Meders also testified that he purchased drugs,\\n\\nexplaining that “any time I bought dope, I bought it from [Harris].” Meders’ own\\n\\n\\n\\n\\n 42\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 43 of 44\\n\\n\\nadmissions that he used drugs were backed up by the testimony of other witnesses\\n\\nthat he did.\\n\\n Based on the other evidence presented, the jury could reasonably conclude\\n\\nthat Meders’ drug use was the cause of the debt he allegedly owed. And even if\\n\\nhis drug use was not the cause of it, his debt was not “a critical fact for the\\n\\ndetermination of guilt,” anyway, as the district court noted. All of this means that\\n\\na fairminded jurist could agree with the state trial court’s ruling that Meders failed\\n\\nto show Strickland prejudice from counsel’s failure to object to the admission of\\n\\nthe cocaine citation. Even considering any purported cumulative effect from the\\n\\nadmission of the food stamps and cocaine citation and trial counsel’s failure to\\n\\npresent the impeachment evidence, a fairminded jurist could still conclude that it\\n\\nwas insufficient to undermine his confidence in Meders’ trial. See Reed v. Sec’y,\\n\\nFla. Dep’t of Corr., 767 F.3d 1252, 1263–64 (11th Cir. 2014).\\n\\n III. CONCLUSION\\n\\n Because our review is deferential, we need not determine whether our\\n\\ndecision would be the same if we were conducting a de novo review, though we\\n\\nrecognize that a different standard of review would make the questions in this case\\n\\ncloser ones. Looking through the AEDPA lens, we conclude that a fairminded\\n\\njurist could agree with the state trial court’s decision. Or put another way, not\\n\\nevery reasonable jurist would conclude that the state trial court’s decision was\\n\\n\\n\\n 43\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 44 of 44\\n\\n\\ncontrary to or an unreasonable application of Supreme Court precedent. And for\\n\\nthat reason, the district court did not err in denying Meders’ petition for a writ of\\n\\nhabeas corpus.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 44\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4356233/\", \"author_raw\": \"ED CARNES, Chief Judge\"}]}"},"judge1":{"kind":"string","value":"CARNES"},"judge2":{"kind":"string","value":"MARCUS"},"judge3":{"kind":"string","value":"NEWSOM"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4578980/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Jimmy Fletcher MEDERS, Petitioner-Appellant, v. WARDEN, GEORGIA DIAGNOSTIC PRISON, Respondent-Appellee.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-01-04\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 14-14178 Date Filed: 01/04/2019 Page: 1 of 44\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n Nos. 14-14178; 15-14734\n ________________________\n\n D.C. Docket No. 2:07-cv-00090-LGW-JEG\n\n\n\nJIMMY FLETCHER MEDERS,\n\n Petitioner-Appellant,\n\n versus\n\nWARDEN, GEORGIA DIAGNOSTIC PRISON,\n\n Respondent-Appellee.\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Georgia\n ________________________\n\n On Petition for Rehearing by the Panel\n\n ––––––––––––––––––––––––\n\n (January 4, 2019)\n\nBefore ED CARNES, Chief Judge, MARCUS, and NEWSOM, Circuit Judges.\n\nED CARNES, Chief Judge:\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 2 of 44\n\n\n The Appellant, Jimmy Fletcher Meders, filed a petition for rehearing en\n\nbanc, which under our rules also counts as a petition for panel rehearing. See 11th\n\nCir. R. 35, I.O.P. 2 (“A petition for rehearing en banc will also be treated as a\n\npetition for rehearing before the original panel.”); Cadet v. Fla. Dep’t of Corr., 853\n\nF.3d 1216, 1218 (11th Cir. 2017) (“At least until an order granting or denying the\n\npetition for rehearing en banc is issued, a panel retains authority to modify its\n\ndecision and opinion.”).\n\n The petition, insofar as it requests panel rehearing, is granted to the extent\n\nthat we vacate our earlier opinion, Meders v. Warden, Ga. Diagnostic Prison, 900\n\nF.3d 1330 (11th Cir. 2018), and issue this one in its place.\n\n The petition for rehearing en banc remains pending. In light of the issuance\n\nof this revised panel opinion, the Appellant is granted 21 days to file a supplement\n\nto his petition for rehearing en banc, if he wishes to do so. See Fed. R. App. P.\n\n40(a)(4)(C); cf. CSX Transp., Inc. v. Ala. Dep’t of Revenue, 888 F.3d 1163, 1188\n\nn.14 (11th Cir. 2018). He is not required to file a supplement. If he does file one\n\nand the Court desires a response from the Appellee, one will be requested.\n\n Our revised opinion follows:1\n\n\n\n 1\n Our only revisions involve Part II of the opinion. We have removed the seven\nparagraphs of the former opinion beginning with: “The Georgia Supreme Court denied Meders’\n. . .” and ending with “hearing in the state trial court on remand.” In their place we have added\nthe 10 paragraphs beginning with: “The Georgia Supreme Court denied Meders’ . . .” and\nending with “that are relevant to the ineffective assistance of counsel claims.”\n\n\n 2\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 3 of 44\n\n\n Jimmy Fletcher Meders, a Georgia prisoner, filed a 28 U.S.C. § 2254\n\npetition in the Southern District of Georgia raising 18 claims. After the district\n\ncourt denied his petition, Meders moved for a certificate of appealability on several\n\nof his claims. The district court granted that motion only as to his claim alleging\n\nthat trial counsel was ineffective at the guilt phase of his trial. This is his appeal.\n\n I. BACKGROUND\n\n A. Facts\n\n The facts that follow in these two paragraphs are not disputed. On October\n\n13, 1987, Meders went to help his boss, Randy Harris, fix a car at Harris’ house.\n\nBill Arnold and Greg Creel later arrived at the house. Arnold is Harris’ cousin,\n\nand Creel is Arnold’s friend. Meders, Harris, Arnold, and Creel spent the\n\nafternoon drinking beer and liquor. The four of them went to a Best Western motel\n\nlater that evening, where Harris had rented a room for a young woman with whom\n\nhe was having an extramarital affair. Meders, Arnold, and Creel left the motel\n\nlater that night.\n\n Around 2:35 the next morning (October 14), the three men stopped by a\n\nJiffy Store. Don Anderson, the store clerk, was shot twice — once in the chest,\n\nonce in the head — and he died. The weapon used in the shooting was a Dan\n\nWesson .357 Magnum revolver. Meders took between $31 and $38 from the cash\n\nregister. Included in the cash taken were two $1 bills and a $5 bill that the store\n\n\n\n 3\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 4 of 44\n\n\nmanager had planted as bait money — she had written down the three bills’ serial\n\nnumbers and kept them in the store’s records so that the money could be identified\n\nif the store was robbed and the money was recovered. That bait money and some\n\nfood stamps were found in Meders’ wallet and in his house after he was arrested\n\nlater that same day. The murder weapon was found under his bed two days later.\n\n B. The Trial\n\n Meders was indicted in Georgia state court in December 1987 for the murder\n\nand armed robbery of Anderson, the store clerk. The case proceeded to a jury trial.\n\n 1. The State’s Witnesses\n\n Because the claim Meders presses in this Court involves the trial testimony\n\nof several of the State’s witnesses, we recount their testimony in some detail.\n\n The State first called Harris to the stand. He testified that he spent the\n\nafternoon of October 13 drinking with Meders, Arnold, and Creel. He paid Meders\n\nabout $200 for his work on a car, and while they were sitting around drinking and\n\ntalking, Meders kept mentioning that he owed some people in Florida $2,000 for\n\nsome drugs, and that they were “going to come down here and kill him if he didn’t\n\npay them.”\n\n Harris testified that later that evening all four men went to a Best Western\n\nmotel. They continued to drink, “smoked a joint or two,” and sat around talking in\n\nthe motel room. Meders, Arnold, and Creel left the motel around 8:30 p.m. but\n\n\n\n 4\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 5 of 44\n\n\nMeders returned to it around 3:15 a.m. After he did so, according to Harris,\n\nMeders pulled out a revolver and told him: “I just blowed a man’s head off over\n\n$38.00.” Harris thought he was joking, so Meders threw some cash and some\n\n“little white pieces of paper” about “the same size [as] a dollar bill” on the bed.\n\nMeders also opened the revolver’s chambers and dumped the bullets on the bed.\n\nHarris said that two of the bullets had been “freshly fired.” He testified that\n\nMeders picked up the cash and the pieces of paper, put them back in his pocket,\n\nand left the motel.\n\n Harris testified that around that same time, Arnold called his motel room and\n\nasked Harris to pick up Creel and him from a trailer park. Harris drove Creel’s\n\ntruck to the trailer park, picked up both of them, and took them to Harris’ house.\n\nAfter arriving at his house around 4:00 or 5:00 a.m., Harris urged the two of them\n\nto go to the police and report what had happened. He testified that the three of\n\nthem talked for about an hour and then all three went to sleep at his house. Around\n\n9:00 a.m., Harris woke up and went to his shop; the police questioned him there\n\nand then took him to the police station for more questioning.\n\n Creel testified next for the State. He stated that he, Harris, Arnold, and\n\nMeders had spent the afternoon of October 13 drinking before going to the Best\n\nWestern later that evening. After spending a few hours in the motel room, he,\n\nArnold, and Meders left and went riding around, stopping at a couple of bars.\n\n\n\n 5\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 6 of 44\n\n\nArnold was driving, Meders was in the passenger seat, and Creel was in the back\n\nseat. They later stopped at a Jiffy Store because Creel was hungry. He testified\n\nthat both he and Meders got out of the car and went into the store. Once inside,\n\nCreel grabbed a Yoo-hoo and a package of sausage and biscuits. While he was\n\nheating up his sausage and biscuits in a microwave in the back of the store, he\n\nheard a gunshot. He turned around and saw the store clerk falling against the wall\n\nand Meders facing the wounded clerk.\n\n Creel testified that he “tore out” of the store, and as he was running out, he\n\nheard a second gunshot. He exited the store, jumped in the back seat of the car,\n\nand told Arnold to “go” because Meders had “just shot a man.” He recounted how\n\nMeders had run out of the store, jumped in the front passenger seat of the car, and\n\npointed his gun at Arnold and Creel. Arnold drove to Shady Acres, a trailer park,\n\nwhere he and Creel got out. Meders got in the driver’s seat, and Arnold told\n\nMeders “to never come around him again.” Meders asked Arnold and Creel if they\n\nwanted any of the money or food stamps he had taken from the store. They both\n\nsaid no, that they didn’t want any part of it. Creel and Arnold then walked to one\n\nof the trailers where they called Harris to pick them up. Creel testified that he\n\ndidn’t know Meders until the day before the shooting, that he didn’t know that\n\nMeders had a gun until the shooting, and that he had no idea that Meders was\n\n\n\n\n 6\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 7 of 44\n\n\ngoing to rob the store or shoot the clerk. He also stated that he had given the police\n\ntwo statements about the incident: one on October 15, and one a few weeks later.\n\n On cross-examination Creel confirmed that, after they all were finished\n\ndrinking at Harris’ house, they did not take Meders back to his house but instead\n\nwent to the Best Western. For that reason, Creel thought Meders “must have” had\n\nthe gun on him during the afternoon of October 13. Defense counsel also asked\n\nCreel whether he shot at a couple of trucks while they were riding around that\n\nevening. Creel testified that he did not — that he didn’t even know Meders had a\n\ngun until the shooting inside the store.\n\n The State next presented Arnold, who is Harris’ cousin. For the most part\n\nArnold’s testimony tracked Creel’s. Arnold testified that he had grown up with\n\nCreel and that he had known Meders for about “a year or two” before the shooting.\n\nArnold told how, after the four of them spent the afternoon of October 13 drinking,\n\nthey all went to a room at the Best Western, and later he, Creel, and Meders left\n\n(without Harris) to go riding around. In the early morning hours of October 14,\n\nthey stopped at a Jiffy Store because Creel was hungry and Meders wanted some\n\ncigarettes. After Arnold parked the car, Creel and Meders both went inside the\n\nstore. The next thing Arnold heard was a gunshot, and the next thing he saw was\n\nCreel running out of the store. Then Arnold heard another shot, and Creel jumped\n\nin the car and “hollered that Jimmy [Meders] had just killed that man.” Meders\n\n\n\n 7\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 8 of 44\n\n\nthen jumped in the car, waved his gun around and pointed it at Arnold and Creel,\n\nand told Arnold to drive off and “get away from the store.”\n\n Which Arnold did. He drove them to the Shady Acres Trailer Park, where\n\nhe and Creel got out of the car and refused to take any of the cash Meders had\n\nstolen. Meders got in the driver’s seat and drove off, while Arnold and Creel went\n\ninto a friend’s trailer and called Harris and asked him to pick them up. Arnold\n\ntestified that Harris picked them up and they all went to Harris’ house, where he\n\ntold them that they should go to the police. Instead, the three went to sleep.\n\nArnold went to the police station the next morning, October 15, to give a\n\nstatement.\n\n On cross-examination Arnold testified that he did not take Meders back to\n\nhis house in the hours before the shooting but that they did stop by a bar while they\n\nwere driving around. He stated that no one in the car had “shot at a truck” while\n\nthey were driving around.\n\n Margaret Clements, who was the manager of the Jiffy Store at the time of\n\nthe shooting, was the next witness for the State. She testified that a couple of days\n\nbefore the shooting she had recorded the serial numbers from a $5 bill and two $1\n\nbills, and that those three bills were put in a money clip in the register to use as the\n\nstore’s “bait money.” When the bait money was removed from the register, it\n\nwould trigger a silent alarm. She said that when she went to the store after the\n\n\n\n 8\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 9 of 44\n\n\nshooting, between $31.00 and $38.00 — which included the $7.00 in bait money\n\n— had been taken from the register, but she couldn’t determine how many food\n\nstamps were taken. She also testified that a receipt was left sticking out of the\n\nregister, which showed a transaction for 51 cents at 2:35 a.m. on October 14, 1987.\n\n The State then presented several witnesses who testified about the scene of\n\nthe crime, the evidence related to the crime, and the police department’s\n\ninvestigation of the crime.2 Among them was Charles Byerley, an investigator\n\nwith the county police department, who testified about the evidence found during\n\nthe search of Meders’ house. He and two other officers found a holster containing\n\nseveral rounds of .357 Magnum bullets. They also found a dollar bill that was torn\n\nin half sitting on top of a television in the house. Byerley testified that the torn\n\ndollar bill had the same serial number as one of the $1 bills from the Jiffy Store’s\n\nbait money. He also stated that after Meders was arrested later that day, he had\n\ninventoried Meders’ wallet and found $82 in cash, as well as some food stamps.\n\n\n 2\n Abe Brown, the Glynn County coroner, and David Griffin, the county medical\nexaminer, testified about Anderson’s gunshot wounds and the cause of his death. Charlie\nBeasley from the Glynn County Police Department’s evidence and investigation unit testified\nthat he secured the evidence from the crime scene and a few days later he delivered it to Roger\nParian, a firearms examiner from the Georgia Bureau of Investigation. Parian testified that,\nbased on the evidence from the crime scene, the two .357 Magnum bullets recovered there came\nfrom the Dan Wesson .357 revolver that Beasley had provided to him.\n Greg McMichael, a Glynn County police officer at the time of the shooting, testified that\nwhen he responded to the call at the Jiffy Store, he passed a car with several occupants driving\naway from the location of the Jiffy Store. And Matthew Doering, a detective from the Glynn\nCounty Police Department, testified that on October 14 he found that same car at Meders’ house.\nAfter impounding it, he searched the car and found a “Dandy Sausage Biscuits” wrapper.\n\n\n 9\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 10 of 44\n\n\nThe serial numbers of a $1 bill and a $5 bill from Meders’ wallet matched the\n\nserial numbers of the other $1 bill and the $5 bill from the bait money.3 A Georgia\n\ncitation for the sale of cocaine was also found in Meders’ wallet and it was\n\nadmitted into evidence.\n\n The State called Jack Boyet as its last witness. Boyet was a detective with\n\nthe Glynn County Police Department at the time of the murder. He responded to\n\nthe scene at the Jiffy Store and also went with two other officers to Meders’ house\n\nlater that morning to question him. At the house Boyet told Meders that he had\n\nsome questions about a homicide at the Jiffy Store, and Meders falsely stated that\n\nhe didn’t know anything about it. Boyet then asked Meders whether he had a gun\n\nor knife on him, and Meders admitted that he did. The officers took a “small .22\n\npistol,” which was loaded and had a shell in the chamber, from the right pocket of\n\nhis jacket. They also found 17 food stamps in the left pocket of Meders’ jacket.\n\nAfter reading him his Miranda rights, Boyet asked him if he had any other firearms\n\nin the house, and Meders said he had a .357 revolver. The officers obtained that\n\nfirearm (a fully loaded Ruger Black Hawk .357 revolver) and the .22 pistol and\n\ntook Meders to the station for more questioning.\n\n\n\n\n 3\n Neal Harrell, a special agent with the Georgia Bureau of Investigation, testified that he\nwent with Byerley to Meders’ house around 11:15 a.m. on October 14, and confirmed that he\nand Byerley discovered the evidence that Byerley testified about at trial.\n\n\n 10\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 11 of 44\n\n\n Detective Boyet told the jury that at the police station Meders again stated\n\nthat he didn’t know anything about the robbery-murder and had not gone to the\n\nJiffy Store. He claimed, instead, that he had been at the Best Western and had\n\ngone home around midnight. Boyet then informed Meders that Harris had just\n\ngiven a statement to detectives that Meders had told him that he “had blew a man’s\n\nhead off for $38.00.” Meders denied saying that and told Boyet that Harris was\n\n“trying to get him” because he thought Meders was having an affair with his wife.\n\nAfter Boyet finished interviewing him, Meders was arrested.\n\n Boyet testified that on October 16, Harris came to the police station and said\n\nthat he “had received information” that the gun used in the shooting was under\n\nMeders’ waterbed. Boyet executed a search warrant at Meders’ house that day and\n\nfound a Dan Wesson .357 Magnum revolver “under the center of the [waterbed’s]\n\nmattress.” The firearms examiner later concluded that the revolver had fired the\n\ntwo bullets that killed the Jiffy Store clerk.\n\n Boyet also testified that on November 14, 1988 — a year and one month\n\nafter the murder and Meders’ first statement to police, and four months before the\n\ntrial — Meders asked to talk with him again. Despite his previous statements\n\ndenying that he knew anything about the crime, Meders now told Boyet a different\n\nstory. Here’s how Boyet recounted on the witness stand Meders’ new story:\n\n He said that he first got with Bill Arnold and Greg Creel on the\n afternoon of October 13th, 1987. . . . They drank beer, smoked several\n\n 11\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 12 of 44\n\n\n joints, got high, got drunk, and they [ ] went to a motel room where\n Randy Harris was [ ] with a girl. . . .\n\n They rode around that afternoon and took him home. He was\n drunk, passed out on the couch. Around 11:00 [p.m.] they came back\n to his house. Bill Arnold woke him up and told him they needed him\n to go with him, and to bring his gun. He told the[m] he didn’t want to\n go, said we need you to go, get your gun and come with us, said he got\n his gun, the Dan Wesson revolver out from under the couch, got in the\n car with them. At that time they went to the Best Western Motel where\n Randy and Sandra Ruggles were at. At that point [Harris] and [Arnold]\n got over in the side of the room, were whispering low voices. He\n couldn’t understand what they were saying. [Arnold, Creel, and\n Meders] then got in the Roadrunner and left, went riding around, rode\n around the County. At one point Bill Arnold took the gun, the Dan\n Wesson, and shot at a truck. They shot at a . . . flower shop . . . on 303,\n shot a new Chevy truck somewhere on 303. They passed a young man\n by the name of Keith Bowen on Community Road. [Arnold] asked\n [Meders] to shoot [Bowen], or give him a gun, he would shoot him, and\n [Meders] said he got scared and told him he was crazy, and they kept\n riding. Said they rode several hours still drinking. They pulled into the\n Jiffy Store to get something to eat at Marshes of Mackay. All three\n went in. He said Creel went to the back, got something, put it in a\n microwave oven. He stayed up by the counter, didn’t go any further\n because he was drunk. Said at that time Bill Arnold pulled out the gun,\n shot the man, that he fell. He shot him again, and [Meders] said he told\n him, you shot that man. He said [Arnold] laughed, and said, yes, no\n witnesses, get the money. Then he said he then took the money out of\n the cash register. They got in the car and left. After leaving there, they\n went to Shady Acres Trailer Park. . . . [Creel] and [Arnold] got out of\n the car there, left him with the car, said he left the gun with [Arnold].\n He drove directly home, did not go anywhere, and went to bed.\n\nMeders also told Boyet that he did not go to Harris’ motel room after the murder,\n\nthat Harris had told him later that morning that the best thing he could do is keep\n\nhis mouth shut about the shooting, and that Harris had put the gun under Meders’\n\nmattress. Boyet testified that Meders said he had waited more than a year to tell\n\n\n 12\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 13 of 44\n\n\nthe police about the incident because he was scared of what would happen if he\n\ntold them. Boyet confirmed that he had not found any evidence that Arnold or\n\nCreel ever had the gun that killed the store clerk, or any evidence that corroborated\n\nMeders’ story about what had happened.\n\n Defense counsel then cross-examined Boyet. Boyet stated that when he\n\nquestioned Creel and Arnold on October 15 about whether they had shot at a truck\n\nas they were riding around during the night of October 13, they both denied it.\n\nDefense counsel then asked: “And did you have any reason to, to doubt that they\n\nwere telling you the truth?” Boyet responded: “The only thing I had to indicate\n\nthat they did do it was, is Jimmy Meders saying that they did.” He added: “There,\n\nthere is no other evidence to indicate that they did. There, there are no witnesses\n\nthat saw it other than the, the three who were allegedly in the [car], and I have no\n\nproof that they did do it.”\n\n 2. The Defense Witnesses\n\n The State rested, and the defense presented its case. Five witnesses testified\n\nfor the defense before Meders himself took the stand. His wife Sherry testified that\n\nMeders had passed out from drinking around 10:00 p.m. on October 13, 1987, that\n\nArnold came inside their house later that night asking to borrow a gun, and Meders\n\nleft the house with him. On cross-examination Sherry Meders admitted telling\n\nofficers on October 14 that she did not know whether her husband had left the\n\n\n\n 13\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 14 of 44\n\n\nhouse during the previous night and that she did not tell them that Arnold came by\n\nthe house to pick up Meders or Meders’ gun. She had told the police that Meders\n\nhad, among other guns, two .357 caliber guns in the house. She testified that she\n\nnever told Harris that the murder weapon was under Meders’ waterbed.\n\n Wayne Martin, a friend of Meders, testified that after going by the Best\n\nWestern for about 10 minutes on the night of October 13, he and Meders went to\n\nMeders’ house to drink some beer. He stated that when he left around 10:00 p.m.\n\nMeders was “passed out . . . on the couch.” Martin stated that a couple of months\n\nafter the shooting, Meders told him that he had been with Arnold and Creel at the\n\ntime of the shooting, that they had his gun, but that he didn’t remember what\n\nhappened during the shooting.\n\n Meders’ brother and his brother’s wife both testified that they saw Meders\n\naround 2:25 a.m. on October 14, that he was with Arnold and Creel then, and that\n\nthe three men had a gun in the car. His brother also stated that about six to seven\n\nmonths after the shooting, Meders told him that either Arnold or Creel had shot the\n\nclerk. Another witness testified that he saw Arnold at a bar around 5:00 or 6:00\n\np.m. on October 14, the day of the murder, and that Arnold told him and a few\n\nothers that he had to go see Harris and Creel to “see what the deal was” and “get\n\nthe story straight.”\n\n\n\n\n 14\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 15 of 44\n\n\n Finally, Meders testified on his own behalf. He said that during the\n\nafternoon of October 13, 1987, he and Harris took two 10 milligram Valiums each\n\nand drank some beer at the auto shop before Arnold and Creel met them at Harris’\n\nhouse, where they all drank some more. He stated that Harris gave him $250 for\n\nsome work he had done on a car, and Harris also bought a bulldog from Creel for\n\n$50. Meders testified that he, Arnold, and Creel “felt like getting drunk” so they\n\nwent to the liquor store and bought some alcohol. Around 5:30 p.m., Meders felt\n\nlike he had “had enough to drink,” so he stopped drinking — at least for a little\n\nwhile. He said that Harris then told him, Arnold, and Creel that he had to go pick\n\nhis wife up from work, so Arnold and Creel drove Meders home.\n\n Meders testified that later that night, his friend Wayne Martin took him to\n\nthe motel room that Harris had rented. Meders and Harris talked for a little while,\n\nthen Martin took Meders back home, where Meders drank some beer and passed\n\nout on the couch. The next thing Meders recalled was Arnold waking him up\n\naround 11:00 or 11:30 p.m. insisting that he “go with him.” Arnold picked him up\n\nunder the arms, and then as they were leaving Meders’ house Arnold grabbed the\n\nDan Wesson .357 Magnum, which was the murder weapon. They got in the car\n\nwith Creel and went to Harris’ motel room. Meders testified that after leaving the\n\nmotel, Arnold drove Creel and Meders by two houses. He said that Arnold and\n\nCreel had gotten in a fight with some people (one of whom was a man named\n\n\n\n 15\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 16 of 44\n\n\nKeith Bowen) and “wanted revenge,” and as the three men were driving by those\n\ntwo houses, Arnold fired Meders’ gun twice — once at a dark truck parked at one\n\nhouse, and the other time at a white truck parked at the other house. Meders then\n\ntold Arnold to take him home because he didn’t want to be involved in any trouble.\n\n According to Meders, Arnold did not take him home but instead drove to a\n\nconvenience store. After that Meders started driving the car, and as he was\n\nheading back to his house, he saw his brother and his brother’s wife making a\n\ndeposit at a bank “right around the corner from [his] house.” When they stopped at\n\nthe bank to talk to Meders’ brother and sister-in-law, Arnold got back in the\n\ndriver’s seat. They then drove to another convenience store, and Arnold went in\n\nwith Meders’ gun in his pocket while Creel and Meders sat in the car. Meders\n\ntestified that they thought Arnold was just “kidding” around by taking the gun\n\ninside.\n\n Meders testified that after Arnold returned to the car, he drove to the Jiffy\n\nStore, and all three men went inside. Meders testified that he and Arnold were\n\nstanding near the counter while Creel went to the microwave. He stated that out of\n\nnowhere, Arnold “pulled the gun and shot” the clerk twice, then told Meders: “No\n\nwitnesses. Get the money.” Meders grabbed the money out of the cash register,\n\nand the three men exited the store “pretty quickly,” got in the car, and Arnold\n\ndrove to Shady Acres Trailer Park, where he and Creel got out. Meders told\n\n\n\n 16\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 17 of 44\n\n\nArnold to keep the gun, that he didn’t want it back, and then he drove back to his\n\nhouse. He testified that after getting to his house, an officer pulled up and told him\n\nthat he had a brake light out. Meders went inside and went to sleep on the couch.\n\n Later that morning Harris came by Meders’ house and told him to “go on to\n\nwork” and that he would be there shortly. Meders testified that Harris later told\n\nhim at the shop that he should keep his mouth shut and “let [it] blow over” because\n\nMeders had a wife and child to take care of. Meders went back to his house, and\n\nseveral officers showed up. He told the officers multiple times that he did not\n\nknow anything about the shooting, which he admitted at trial was not true. Meders\n\nwent to the police station around 11:15 that morning and, as he claimed that Harris\n\nhad advised him, told the officers again that he did not know anything about the\n\nrobbery-murder.\n\n Meders acknowledged at trial that he did not tell Detective Boyet that he\n\nwitnessed the shooting until more than a year after the murder. He also conceded\n\nthat although he did not know how the torn $1 bill from the bait money ended up\n\non his television, the officers did find the other two bills of the bait money (the $5\n\nbill and the other $1 bill) in his wallet. And he acknowledged that the officers\n\nfound the murder weapon under his bed after Harris told them on October 16,\n\n1987, exactly where to find it. He claimed that he had no idea how the firearm got\n\nthere.\n\n\n\n 17\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 18 of 44\n\n\n 3. The State’s Rebuttal Witnesses\n\n Harris and a Brunswick City police officer testified in rebuttal for the State.\n\nHarris admitted that he had previously pleaded guilty to selling marijuana. He also\n\ntestified that it was Meders’ wife Sherry who had told him where the murder\n\nweapon was.\n\n The city police officer testified that around 3:30 a.m. on October 14, 1987,\n\nhe saw a vehicle speeding about a quarter mile from Meders’ house, and he later\n\nlocated that vehicle at Meders’ house. After he stopped in front of the house\n\nMeders came out to see “what was wrong.” The officer asked Meders if he had\n\nbeen driving the vehicle, and Meders, who was acting “very, very nervous,” told\n\nthe officer that he had just driven it back from the Amoco station where he had\n\ncalled his girlfriend, and that he was nervous because his wife “would kill him” if\n\nshe found out that he had a girlfriend.\n\n 4. The Closing Arguments\n\n The State waived its opening argument to the jury but reserved the right to\n\nconclude. Defense counsel argued in closing that the State had allowed Harris,\n\nArnold, and Creel to “design its case,” and he pointed out inconsistencies between\n\ntheir testimonies. He told the jury that he didn’t believe the “Arnold-Creel-Harris\n\nversion of this case speaks the truth” and argued that Harris planted the murder\n\nweapon under Meders’ bed.\n\n\n\n 18\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 19 of 44\n\n\n The State told the jurors in its closing argument that they would have to\n\njudge the credibility of the witnesses, and that “Randy Harris, Bill Arnold, Greg\n\nCreel, [and] the police officers all told the same story all the way down the line\n\nfrom day one.” It argued that Meders, his wife, and Martin had made up their\n\nstories about a year after the incident. And it noted that Meders had never\n\nexplained what he did in the “twenty-five minute[ ]” gap between leaving the\n\nShady Acres Trailer Park and arriving at his house. The State argued that what he\n\nhad done was stop by the Best Western and tell Harris what he had done, just as\n\nHarris had recounted to the jury. The State pointed out that Meders had several\n\nopportunities to tell the police what he knew about the crime, but he failed to do so\n\nuntil more than a year after the murder — unlike Harris, Arnold, and Creel.\n\n 5. The Jury Verdict and Sentence\n\n During its deliberations, the jury asked six questions, three of which Meders\n\ndiscusses in his briefs to this Court:\n\n During the execution of the first search warrant, was the bedroom\n searched, if so was the waterbed searched?\n Can fingerprints be taken and if so were they taken on the waterbed\n mattress??\n [Were] there any reports filed on the incident of the truck, on Ga Hwy\n 303, [r]eported between the day after or between then and now, being\n shot at??\n\nThe court told the jury that it could not “respond to you in any regard concerning\n\nthe evidence in this case,” and that the jury must base all of its findings on the\n\n\n 19\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 20 of 44\n\n\nevidence that had been presented to it. After two hours of deliberations, the jury\n\nreturned a guilty verdict on the charges of malice murder and armed robbery.\n\nMeders was sentenced to death for the murder offense and to a consecutive life\n\nsentence for the armed robbery offense. (There are no sentence stage issues in this\n\nappeal.)\n\n C. The Direct Appeal and Remand Proceedings\n\n Meders appealed his convictions and sentences to the Georgia Supreme\n\nCourt. See Meders v. State, 389 S.E.2d 320 (Ga. 1990). Although his trial counsel\n\ninitially represented him in the appeal, other counsel appeared for him and filed a\n\nnew brief on his behalf that “raised questions about the effectiveness of trial\n\ncounsel.” Id. at 324. Because the ineffective assistance of trial counsel was raised\n\nfor the first time on appeal by Meders’ new attorney, the Georgia Supreme Court\n\ngranted the State’s request to remand the case to the trial court for a hearing on that\n\nissue. Id. at 325. Before doing so, it rejected all of Meders’ other claims of error.\n\nId. at 321–24.\n\n At the remand hearing Meders contended that his trial counsel was\n\nineffective during the guilt phase for:\n\n [1] failing to use police incident reports found in the prosecutor’s open\n file and failing to develop testimony of the shootings near Highway 303\n that corroborated [his] trial testimony and impeached the testimony of\n the State’s key witnesses; [2] failing to utilize prior inconsistent\n recorded statements of the State’s three eyewitnesses found in the\n prosecutor’s open file; [3] failing to object to the admission of an\n\n 20\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 21 of 44\n\n\n unadjudicated citation for cocaine sales; [and] [4] failing to object to\n the admission and use of food stamps based upon a note in the\n prosecutor’s open file that the food stamps could not be linked to the\n robbery.\n\nThe evidence presented at the hearing included the complete files of the prosecutor\n\nand of Meders’ trial counsel as well as documents from the Glynn County Police\n\nDepartment relating to Meders’ case.\n\n The prosecutor’s file contained pretrial statements from Harris, Arnold, and\n\nCreel, including transcripts of Harris’ October 14, 1987 interview and of Arnold’s\n\nand Creel’s October 15 interviews. There were several inconsistencies between\n\nthose pretrial statements and trial testimony. For example, in their pretrial\n\nstatements Arnold and Creel told the police that they had taken Meders home and\n\npicked him up on the night of October 13, but in their trial testimony they denied\n\ndoing that. Creel’s pretrial statement showed that he told the police he knew\n\nMeders had a gun when Meders went into the Jiffy Store, but he testified at trial\n\nthat he did not know about the gun until Meders actually shot the clerk.\n\n A report prepared by Boyet shows that when the police went to Harris’ body\n\nshop around 11:00 a.m. on October 14, Harris told them that he had not seen\n\nMeders since the night before and he did not say anything about the shooting or\n\nMeders’ involvement in it. But at the police station just over an hour later, Harris\n\ntold the police that Meders had stopped by his motel room around 3:00 to 4:00 that\n\nmorning and told him that he had just “killed a man over $38.” Harris also told the\n\n 21\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 22 of 44\n\n\nofficers that Meders did not say where (that is, in what part of the body) he had\n\nshot the clerk but “just [that] he shot him.” At trial Harris had testified that Meders\n\nstopped by his motel room around 3:15 a.m. and told him that: “I just blowed a\n\nman’s head off over $38.00.”\n\n The pretrial statements also show that Harris told the officers on October 14\n\nthat he had no idea where Meders would keep the murder weapon. Two days later\n\nhe told Boyet that he “had been thinking about it and the only place he could think\n\nof where Meders would have hidden the gun he used was the water bed in\n\nMeders[’] bedroom.” At trial, however, he had testified that Meders’ wife Sherry\n\nhad told him where the gun was located.\n\n The prosecutor’s file also contained two police reports that supported\n\nMeders’ trial testimony about the truck shootings and contradicted the testimony of\n\nArnold, Creel, and Detective Boyet on that subject. One police report stated that\n\naround 12:30 a.m. on October 14, a car passed by the complainant’s house several\n\ntimes and someone in the car “fired a shot” on the last pass. The bullet struck the\n\nwall near the house, missing the truck parked in the driveway “by about a foot.”\n\nThe complainant’s son was Keith Bowen — the same person that Meders testified\n\nhad been in a fight with Arnold and Creel. See supra at 16. The other report stated\n\nthat around 1:30 that same morning, someone “fired a round” at the complainant’s\n\ntruck, and that the complainant “feels that the incident was caused by Larry\n\n\n\n 22\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 23 of 44\n\n\nBrockington and Greig [sic] Creel due to some problems he has had with them in\n\nthe past.”\n\n Finally, the prosecutor’s file also contained a note that stated “[u]nable to\n\ntrace any food coupons to store,” as well as a report by a Glynn County police\n\nofficer stating that Sherry (Meders’ wife) had told the officer that she and Meders\n\nwere legally receiving food stamps. Less favorable to Meders, that same report\n\nindicated that during the first search of Meders’ house the officers had looked\n\n“around the bottom outside area” of the waterbed but not underneath it.\n\n In addition to that evidence, Meders presented twelve witnesses at the\n\nremand hearing.4 His counsel at the hearing questioned several of those witnesses\n\nabout the shootings involving the two trucks and about the witnesses’ relationships\n\nwith Meders, Arnold, or Creel. One witness — the owner of one of the trucks —\n\ntestified that he had a bad relationship with Creel, and another witness testified that\n\nthe officer who took the police report about one of the truck shootings told her that\n\nthe bullet from the truck shooting “was the same type [of] bullet that had killed”\n\nthe Jiffy Store clerk.\n\n Meders’ counsel also questioned Boyet about the police reports and the\n\ninconsistencies between the pretrial statements and the trial testimony of Harris,\n\n\n 4\n Because Meders’ trial counsel was hospitalized shortly before the remand hearing, he\ncould not be called as a witness. Nor could he be called as a witness in the later state habeas\nproceedings because he died before they began.\n\n\n 23\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 24 of 44\n\n\nArnold, and Creel. Boyet confirmed that before the trial he had talked to Arnold\n\nand Creel about the truck shootings and that they both had denied any involvement\n\nin them. Boyet conceded that he was unable to link to the Jiffy Store any of the\n\nfood stamps that were admitted into evidence, he had never testified he could.\n\n No copies of the pretrial statements of Arnold, Creel, or Harris were found\n\nin Meders’ trial counsel’s file. And nothing in his trial counsel’s file suggested\n\nthat he had reviewed those witnesses’ pretrial statements. Nor did his file contain\n\ncopies of the police reports. Based on the evidence presented at the remand\n\nhearing, Meders argued that his trial counsel was ineffective for failing to use the\n\npretrial statements and police reports to corroborate Meders’ testimony and\n\n“undercut the credibility of the [State’s] prime accusers against [him],” and for\n\nfailing to object to the admission of the food stamps and the citation (that was\n\nfound in his wallet) for the sale of cocaine. He contended that those failures\n\nprejudiced him, and he asked for a new trial.\n\n The state trial court ruled that Meders had failed to show that he was\n\nprejudiced by his trial counsel’s alleged deficiencies. As a result, it denied his\n\nclaim that his counsel was ineffective during the guilt phase of his trial. The\n\nGeorgia Supreme Court affirmed. Meders v. State, 411 S.E.2d 491 (Ga. 1992). As\n\nto Meders’ ineffective assistance claim, the Georgia Supreme Court’s ruling stated\n\nin its entirety: “The trial court’s nine-page order persuasively demonstrates that\n\n\n\n 24\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 25 of 44\n\n\nMeders has failed to overcome the strong presumption that Meders’ trial counsel\n\nperformed effectively.” Id. at 492 (quotation marks omitted). The United States\n\nSupreme Court denied Meders’ petition for a writ of certiorari. Meders v. Georgia,\n\n506 U.S. 837, 113 S. Ct. 114 (1992). That ended the direct appeal.\n\n D. The State Habeas Proceedings\n\n A couple of years later, in April 1994, Meders filed a state habeas petition.\n\nAfter conducting evidentiary hearings, the state habeas court granted relief on\n\nMeders’ claim alleging ineffective assistance of counsel at the guilt phase, but it\n\ndenied relief on his other claims. The State and Meders both appealed. The\n\nGeorgia Supreme Court reversed the grant of relief on Meders’ ineffective\n\nassistance claim, explaining that the claim was procedurally barred because it had\n\nalready been litigated on the merits in the direct appeal. Schofield v. Meders, 632\n\nS.E.2d 369, 372 (Ga. 2006); see id. at 373 (“The record in this case clearly\n\nestablishes that the habeas court granted relief on claims that had been raised in\n\nessentially the identical form in the hearing held on remand to the trial court.”). It\n\naffirmed the state habeas court’s denial of relief on the other claims and reinstated\n\nMeders’ convictions and sentences. Id. at 372.\n\n E. The Federal Habeas Proceedings\n\n Meders filed a 28 U.S.C. § 2254 petition in July 2007 and an amended\n\npetition in January 2012. The district court ruled that Meders’ trial counsel’s\n\n\n\n 25\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 26 of 44\n\n\nperformance at the guilt phase was deficient but concluded that the trial court’s\n\nruling on remand in the direct appeal that Meders could not establish prejudice was\n\nnot an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104\n\nS. Ct. 2052 (1984). See 28 U.S.C. § 2254(d)(1). On that basis it denied his\n\npetition. Meders later moved for a certificate of appealability on several claims,\n\nand the district court granted one on a single general issue: whether Meders’ trial\n\ncounsel was ineffective during the guilt phase of his trial.\n\n II. DISCUSSION\n\n For a third of a century it has been established that counsel does not render\n\nineffective assistance unless he performs outside “the wide range of reasonable\n\nprofessional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Even\n\nthen, the claim is not established and no relief is due unless the petitioner\n\naffirmatively proves that the errors of counsel had not just “some conceivable\n\neffect on the outcome of the proceeding” but “that they actually had an adverse\n\neffect on the defense.” Id. at 693, 104 S. Ct. at 2067.\n\n As for how adverse, and how likely, the effect of the attorney’s errors must\n\nbe: “The defendant must show that there is a reasonable probability that, but for\n\ncounsel’s unprofessional errors, the result of the proceeding would have been\n\ndifferent. A reasonable probability is a probability sufficient to undermine\n\nconfidence in the outcome.” Id. at 694, 104 S. Ct. at 2068; see also Harrington v.\n\n\n\n 26\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 27 of 44\n\n\nRichter, 562 U.S. 86, 112, 131 S. Ct. 770, 792 (2011) (“The likelihood of a\n\ndifferent result must be substantial, not just conceivable.”).\n\n As difficult as it is to prevail on an ineffective assistance prejudice issue in\n\nthe first court to decide it, the Antiterrorism and Effective Death Penalty Act of\n\n1996 makes it even harder to succeed on that issue in a federal habeas proceeding\n\nafter a state court has ruled that the petitioner failed to show prejudice. To obtain\n\nhabeas relief, the petitioner must show that the state court’s ruling “resulted in a\n\ndecision that was contrary to, or involved an unreasonable application of, clearly\n\nestablished Federal law, as determined by the Supreme Court of the United States.”\n\n28 U.S.C. § 2254(d)(1).5 That is a highly deferential standard that is intentionally\n\ndifficult to meet. See Harrington, 562 U.S. at 102, 131 S. Ct. at 786; Trepal v.\n\nSec’y, Fla. Dep’t of Corr., 684 F.3d 1088, 1107 (11th Cir. 2012); see also White v.\n\nWheeler, 577 U.S. __, 136 S. Ct. 456, 460 (2015) (“This Court, time and again, has\n\ninstructed that AEDPA, by setting forth necessary predicates before state-court\n\njudgments may be set aside, erects a formidable barrier to federal habeas relief for\n\nprisoners whose claims have been adjudicated in state court.”) (quotation marks\n\nomitted).\n\n\n\n 5\n A petitioner may, of course, also prevail under AEDPA by showing that the state\ncourt’s ruling “resulted in a decision that was based on an unreasonable determination of the\nfacts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).\nBecause Meders makes no argument under that alternative provision, we will not discuss it\nfurther.\n\n\n 27\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 28 of 44\n\n\n Under AEDPA, error is not enough; even clear error is not enough. Virginia\n\nv. LeBlanc, 582 U.S. __, 137 S. Ct. 1726, 1728 (2017) (“In order for a state court’s\n\ndecision to be an unreasonable application of this Court’s case law, the ruling must\n\nbe objectively unreasonable, not merely wrong; even clear error will not suffice.”)\n\n(quotation marks omitted). To overcome AEDPA deference under § 2254(d)(1),\n\nthe petitioner must “show that the state court’s ruling . . . was so lacking in\n\njustification that there was an error well understood and comprehended in existing\n\nlaw beyond any possibility for fairminded disagreement.” Id. “[I]f some\n\nfairminded jurists could agree with the state court’s decision, although others\n\nmight disagree, federal habeas relief must be denied.” Holsey v. Warden, Ga.\n\nDiagnostic Prison, 694 F.3d 1230, 1257 (11th Cir. 2012) (quotation marks\n\nomitted).\n\n The Georgia Supreme Court denied Meders’ guilt stage ineffective\n\nassistance of counsel claim on the merits. See Meders, 411 S.E.2d at 492. It did\n\nso in the appeal from the order entered by the state trial court on remand during the\n\ndirect appeal. See id. Because it affirmed on the basis of the trial court’s order,\n\nsee id, we “look through” the Georgia Supreme Court’s decision to that trial court\n\norder. See Wilson v. Sellers, 584 U.S. __, 138 S. Ct. 1188, 1192 (2018).\n\n Meders concedes that § 2254(d)(1) deference is due the state trial court’s\n\nruling on remand regarding prejudice. See, e.g., Appellant’s Br. at 33 (“The issue\n\n\n\n 28\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 29 of 44\n\n\nin this case, then, is whether the state court’s conclusion that Meders failed to\n\nprove sufficient prejudice involved an unreasonable application of Strickland, as\n\ndefined by § 2254(d)(1).”). The measure of deference is whether “the state court’s\n\nruling . . . was so lacking in justification that there was an error well understood\n\nand comprehended in existing law beyond any possibility for fairminded\n\ndisagreement.” LeBlanc, 137 S. Ct. at 1728 (citation omitted); Holsey, 694 F.3d at\n\n1257.\n\n “Deciding whether a state court’s decision involved an unreasonable\n\napplication of federal law . . . requires the federal habeas court to train its attention\n\non the particular reasons — both legal and factual — why state courts rejected a\n\nstate prisoner’s federal claims, and to give appropriate deference to that decision.”\n\nWilson, 138 S. Ct. at 1191–92 (quotation marks and citations omitted). That does\n\nnot mean we are to flyspeck the state court order or grade it. What it means is we\n\nare to focus not merely on the bottom line ruling of the decision but on the reasons,\n\nif any, given for it. The bottom line here is the ruling by the state trial court that\n\ncounsel’s failure to use certain pretrial statements of witnesses and police reports\n\ncoupled with their failure to object to certain evidence did not amount to\n\nineffective assistance of counsel. The reason the state court gave for that ruling is\n\nthat there was no reasonable probability of a different result if counsel had acted as\n\nMeders claimed they should have. The reason there wasn’t, the court explained, is\n\n\n\n 29\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 30 of 44\n\n\nthat the evidence counsel failed to present was cumulative and outweighed by the\n\nstrong evidence of guilt, and the objections that they failed to make would have\n\nbeen futile or otherwise would have made no difference anyway. See Strickland,\n\n466 U.S. at 692–96, 104 S. Ct. at 2066–69.\n\n Notwithstanding his concession that deference is due, at other points in his\n\nbriefs Meders appears to implicitly argue either that deference is not due, or\n\nperhaps that deference does not mean much. He does so by engaging in a line-by-\n\nline critique of the state court’s reasoning, pointing out evidence that was not\n\nmentioned in the state court’s order or was not given the weight he feels it\n\ndeserves. See, e.g., Appellant’s Reply Br. at 7–8 (taking issue with how the state\n\ntrial court summarized the evidence against him); id. at 16 (arguing that the state\n\ntrial court’s order “gives no indication” that it considered facts brought to light by\n\nthe impeachment evidence presented at the remand hearing); Appellant’s Br. at 36\n\n(arguing that the court focused on the wrong evidence and “failed to consider the\n\nmost compelling issues framed by the evidence”). That is not the proper approach.\n\n This Court has stressed that in applying AEDPA deference federal courts are\n\nnot to take a magnifying glass to the state court opinion or grade the quality of it.\n\nWe have emphasized time and again that we are “not to read state court opinions as\n\nif we were grading papers.” Rimmer v. Sec’y, Fla. Dep’t of Corr., 876 F.3d 1039,\n\n1055 (11th Cir. 2017) (quotation marks omitted); see also, e.g., Jones v. Sec’y, Fla.\n\n\n\n 30\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 31 of 44\n\n\nDep’t. of Corr., 834 F.3d 1299, 1311 (11th Cir. 2016) (“[W]e have cautioned that\n\noveremphasis on the language of a state court’s rationale would lead to a grading\n\npapers approach that is outmoded in the post-AEDPA era.”) (quotation marks\n\nomitted); Holland v. Florida, 775 F.3d 1294, 1311 (11th Cir. 2014) (“We do not\n\nread state court opinions as if we were grading papers, and must apply AEDPA\n\ndeference absent a conspicuous misapplication of Supreme Court precedent.”)\n\n(quotation marks omitted); cf. Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245,\n\n1255 (11th Cir. 2002) (“Reading into the statute a requirement that state courts\n\nspell out their rationale would run counter to the main thrust of [AEDPA].”).\n\n We have explicitly rejected the proposition that a state court decision\n\ninvolves an unreasonable application of federal law and is not entitled to deference\n\nunless that court’s opinion on its face “shows its work” by explicitly mentioning\n\n“all relevant circumstances” that the defendant argues in support of relief. See Lee\n\nv. Comm’r, Ala. Dep’t of Corr., 726 F.3d 1172, 1211 (11th Cir. 2013). That\n\nproposition captures Meders’ position. Our rejection of it follows the Supreme\n\nCourt’s teaching that “readiness to attribute error” to a state court decision is\n\nincompatible with both “the presumption that state courts know and follow the\n\nlaw” and AEDPA’s “highly deferential standard for evaluating state-court rulings,\n\nwhich demands that state-court decisions be given the benefit of the doubt.”\n\n\n\n\n 31\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 32 of 44\n\n\nWoodford v. Visciotti, 537 U.S. 19, 24, 123 S. Ct. 357, 360 (2002) (citation\n\nomitted) (internal quotation marks omitted).\n\n The Supreme Court in Wilson held that presumptively we should look\n\nthrough a silent higher state court decision to an explicitly reasoned lower court\n\none in determining the reasons for the decision. Wilson, 138 S. Ct. at 1193–96.\n\nBut Wilson was about which state court decision we are to look at if the lower state\n\ncourt gives reasons and the higher state court does not. It was not about the\n\nspecificity or thoroughness with which state courts must spell out their reasoning\n\nto be entitled to AEDPA deference or the level of scrutiny that we are to apply to\n\nthe reasons that they give. Our no-grading-papers, anti-flyspecking rule remains\n\nthe law of the circuit. See Main Drug, Inc. v. Aetna U.S. Healthcare, Inc., 475\n\nF.3d 1228, 1230 (11th Cir. 2007) (“Obedience to a Supreme Court decision is one\n\nthing, extrapolating from its implications a holding on an issue that was not before\n\nthat Court in order to upend settled circuit law is another thing.”); Garrett v. Univ.\n\nof Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1292 (11th Cir. 2003) (“While\n\nan intervening decision of the Supreme Court can overrule the decision of a prior\n\npanel of our court, the Supreme Court decision must be clearly on point.”).\n\n After all, the Supreme Court itself has also held that “federal courts have no\n\nauthority to impose mandatory opinion-writing standards on state courts.” Johnson\n\nv. Williams, 568 U.S. 289, 300, 133 S. Ct. 1088, 1095 (2013). In so holding, the\n\n\n\n 32\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 33 of 44\n\n\nCourt cautioned that “[t]he caseloads shouldered by many state appellate courts are\n\nvery heavy, and the opinions issued by these courts must be read with that factor in\n\nmind.” Id. at 300, 133 S. Ct. at 1095–96 (footnote omitted). Not only that, but the\n\nSupreme Court has held that AEDPA deference is due even to those state court\n\nrulings for which no rationale or reasoning at all is given. See Harrington, 562\n\nU.S. at 100, 131 S. Ct. at 785. It would be irrational to afford deference to a\n\ndecision with no stated explanation but not afford deference to one that states\n\nreasons, albeit not as thoroughly as it could have.\n\n Only the clearest indication that Wilson overruled the Supreme Court’s\n\nprevious decisions, such as Johnson, would warrant ignoring those decisions, and\n\nthere is no indication at all that Wilson did so. See Hohn v. United States, 524\n\nU.S. 236, 252–53, 118 S. Ct. 1969, 1978 (1998) (“Our decisions remain binding\n\nprecedent until we see fit to reconsider them, regardless of whether subsequent\n\ncases have raised doubts about their continuing vitality.”); Agostini v. Felton, 521\n\nU.S. 203, 237, 117 S. Ct. 1997, 2017 (1997) (“We do not acknowledge, and we do\n\nnot hold, that other courts should conclude our more recent cases have, by\n\nimplication, overruled an earlier precedent.”); Rodriguez de Quijas v.\n\nShearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 1921–22 (1989)\n\n(“If a precedent of this Court has direct application in a case, yet appears to rest on\n\nreasons rejected in some other line of decisions, the Court of Appeals should\n\n\n\n 33\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 34 of 44\n\n\nfollow the case which directly controls, leaving to this Court the prerogative of\n\noverruling its own decisions.”).\n\n Applying AEDPA deference to the state trial court decision that Meders\n\nfailed to establish prejudice for Strickland purposes, the question is whether every\n\nfairminded jurist would conclude that prejudice has been established. See\n\nWilliamson v. Fla. Dep’t of Corr., 805 F.3d 1009, 1016 (11th Cir. 2015) (“To\n\nestablish prejudice [where AEDPA applies, a petitioner] has to show that every\n\nfair-minded jurist would conclude that there is a reasonable probability that, but for\n\ncounsel’s unprofessional errors, the result of the proceeding would have been\n\ndifferent.”) (quotation marks omitted). So long as any fairminded jurist could\n\nagree with the state court’s ruling, we must deny federal habeas relief. With that\n\nstandard of deference in mind, we turn to the facts established at trial and in the\n\nevidentiary hearing in the state trial court on remand that are relevant to the\n\nineffective assistance of counsel claims.\n\n A. Failure to Use the Pretrial Statements and the Police Reports\n\n Meders contends that his trial counsel was ineffective for failing to use\n\ncertain pretrial statements and police reports to impeach several of the State’s\n\nwitnesses, and that the state trial court’s determination that he had failed to\n\nestablish prejudice “reflects a profound misvaluation of the impeachment material\n\ntrial counsel failed to use.” The State, while acknowledging that new evidence\n\n\n\n 34\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 35 of 44\n\n\ndoes call into question “certain areas of credibility” of some of its witnesses,\n\ncontends that evidence is not enough to repair Meders’ credibility or to refute the\n\noverwhelming evidence showing his guilt.\n\n As the State recognizes, when read against their testimony at trial, the\n\npretrial statements and the police reports weaken the credibility of Harris, Creel,\n\nArnold, and Detective Boyet. Harris, for example, first told the police around\n\n11:00 a.m. on October 14 that he hadn’t seen Meders since the previous night. An\n\nhour later he told the police that between 3:00 to 4:00 that morning Meders had\n\nstopped by his motel room and told him he shot the store clerk, but said that\n\nMeders had not mentioned that he shot the clerk in the head. But Harris later\n\ntestified at trial that when Meders had stopped by his motel room, Meders told him\n\nhe had shot the store clerk in the head. He also first told the police he didn’t know\n\nwhere the murder weapon was located, then told them two days later that he had\n\nremembered Meders liked to hide things under his waterbed “where they would\n\nnever be found,” and finally testified at trial that Sherry Meders had told him that\n\nthe gun was under the waterbed.\n\n Although it’s clear that Harris made inconsistent statements, it’s not clear\n\nthat he was lying about Meders confessing that he had just “blowed a man’s head\n\noff over $38.00.” Harris testified that Meders took $38 — no more, no less —\n\nfrom the Jiffy Store. But there is no evidence that Arnold or Creel knew how\n\n\n\n 35\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 36 of 44\n\n\nmuch money was taken from the Jiffy Store. And Meders admitted at trial that he\n\nhad taken the money from the cash register and that nothing was said in the car\n\nfrom “the time we left the store till we reached Shady Acres Trailer Park.” So\n\nArnold and Creel could not have told Harris how much money Meders took\n\nbecause they did not know how much money he took. As a result, either Meders\n\ntold Harris that he took $38 from the store (and lied to Boyet when denying that) or\n\nHarris miraculously guessed the precise amount of cash that Meders stole from the\n\nstore.\n\n In a similar vein, Harris’ incentive to lie about who committed the robbery-\n\nmurder was much weaker than that of Meders, Arnold, or Creel. Arnold and Creel\n\nadmitted that they were present at the scene of the murder, putting them in some\n\njeopardy of being convicted of that crime. Harris, by contrast, undisputedly was\n\nnot present during the crime, nor was there any evidence suggesting that he knew it\n\nwas going to happen. No matter whose version of the events the jury found was\n\ntrue, Harris did not face conviction for the capital crime of robbery-murder and a\n\ndeath sentence. And a rational jury in deciding whether to believe him or Meders\n\nwould take into account that he had far less incentive to lie than Meders, who was\n\nfacing a death sentence, did.\n\n Still, Harris could have been impeached with the evidence Meders’ trial\n\ncounsel did not present. And Arnold, Creel, and Detective Boyet also could have\n\n\n\n 36\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 37 of 44\n\n\nbeen impeached with the evidence that was not presented. Arnold’s and Creel’s\n\npretrial statements contradicted some of their testimony at trial. The police reports\n\nfrom the prosecutor’s file not only undermined the testimonies of Arnold, Creel,\n\nand Boyet about the truck shootings but also supported Meders’ testimony about\n\nthose shootings. And the jury’s question about whether any reports were filed\n\nabout the truck shootings suggests that it was interested in that subject. The jury\n\nquestions about whether the waterbed was searched when officers first searched\n\nthe house and whether fingerprints were lifted from it suggest that the jury was\n\nalso interested in that.\n\n Despite all of that, there was still undisputed evidence in the record pointing\n\nto Meders’ guilt. For example, the two bullets that struck the victim were fired\n\nfrom the Dan Wesson .357 Magnum revolver that was found under Meders’\n\nwaterbed. Meders even confirmed at trial that the .357 Magnum “was the weapon\n\nthat was used to kill the [store clerk].” He acknowledged that he owned that\n\nweapon, and there was no evidence that anyone had planted it under his waterbed.\n\n The undisputed facts about what happened to the proceeds of the robbery are\n\nstrong evidence of Meders’ guilt. After all, he admitted to the jury that he was the\n\none who took the money from the Jiffy Store: “I got the money out of the cash\n\nregister.” And he was the only one who kept any of that money. The Jiffy Store’s\n\nbait money was found in his possession. Meders admitted that two of the three bait\n\n\n\n 37\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 38 of 44\n\n\nmoney bills were found in his wallet. The third bait bill was found on his\n\ntelevision. If, as Meders claimed in his testimony, Arnold actually shot the store\n\nclerk during the robbery, it seems highly unlikely that Arnold would not have\n\nended up with any of the stolen money. Meders testified that after the crime, he\n\ninsisted that Arnold keep the firearm that belonged to Meders because he “didn’t\n\nwant it back,” but he never explained why he didn’t insist that Arnold take the\n\ncash, which was the proceeds of the crime.\n\n That the murder weapon was found under Meders’ waterbed evidences his\n\nguilt. And even if we assume that it was put there by someone other than Meders,\n\nas he implied at trial, the fact remains that he admitted to owning the weapon that\n\nfired the bullets that killed Anderson. He admitted to being present at the scene of\n\nthe crime. And he admitted to having in his possession all of the money taken\n\nfrom the cash register. And although the evidence that trial counsel did not present\n\nwould have been helpful in impeachment, none of it substantially undermined the\n\nproof of Meders’ guilt. Whether Arnold and Creel shot at the trucks and whether\n\nthey dropped Meders off at his house at some point before the murder does not\n\nchange the undisputed facts that point to Meders’ guilt. The evidence establishing\n\nthat Meders committed the murder remains strong.\n\n Even though the police reports corroborated some of Meders’ testimony, the\n\nreports would not have repaired his credibility. Meders lied to the police several\n\n\n\n 38\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 39 of 44\n\n\ndifferent times, and he acknowledged as much at trial. He testified that he told the\n\nofficer who pulled up at his house after the shooting that he had just gone to call\n\nhis girlfriend and he was nervous because his wife would kill him if she found out.\n\nThat was a lie, as Meders admitted at trial. And when police officers questioned\n\nhim at his house hours after the murder, he told them he did not know anything\n\nabout the shooting. That was also a lie, as Meders admitted at trial. Hours later at\n\nthe police station, he again told Detective Boyet he knew nothing about the\n\nshooting. Same lie retold, as Meders later admitted at trial.\n\n A year and a month after his arrest Meders reversed a year-long course of\n\nlies and admitted to Boyet that he was with Arnold and Creel at the Jiffy Store at\n\nthe time of the murder. He attempted to explain away his previous lies about that\n\nby saying he had simply been following Harris’ advice to deny any involvement in\n\nthe crime.6 He was the only one out of the three men involved in the crime who\n\ninitially denied having any knowledge of it to persist in that lie for more than a\n\nyear. Meders also lied to the police about the murder weapon. When asked at the\n\n\n 6\n That Meders would follow Harris’ advice is hard to square with his purported belief that\nHarris was out to get him for allegedly having an affair with Harris’ wife.\n Meders argues that in a contest of credibility a jury should not believe Harris’ testimony\nincriminating him because Harris initially failed to mention to the police anything about Meders’\ninvolvement in the murder but an hour later told them that Meders said he had “killed a man over\n$38.” If Harris’ “lie,” which he corrected within an hour, supplies “good reason to doubt” his\ntestimony, Meders’ lies about having no knowledge of the crime, which he failed to correct for\n13 months, give bountiful reason to doubt Meders’ testimony and decide the contest of\ncredibility in favor of Harris.\n\n\n 39\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 40 of 44\n\n\npolice station the day of the robbery and murder what firearms he owned, he listed\n\nseveral guns, failing to mention only one –– his Dan Wesson .357 Magnum that\n\nwas the murder weapon.\n\n Meders has failed to show that had his trial counsel used all of the\n\nimpeachment material during the guilt phase of his trial, every fairminded jurist\n\nwould conclude that there is a “substantial, not just conceivable,” likelihood that\n\nthe result of his trial would have been different. See Harrington, 562 U.S. at 112,\n\n131 S. Ct. at 792. We are not convinced that every reasonable jurist’s confidence\n\nin the outcome of the trial would have been undermined. See Strickland, 466 U.S.\n\nat 687, 104 S. Ct. at 2064. The state trial court’s prejudice determination was not\n\nunreasonable.\n\n B. Failure to Object to the Food Stamps and the Cocaine Citation\n\n Meders also argues that trial counsel’s failure to object to the introduction of\n\nevidence that he had food stamps or to argue to the jury that they could not be\n\nlinked to the robbery also amounted to ineffective assistance. The Jiffy Store\n\nmanager testified that food stamps were taken from the store, although she could\n\nnot say how many food stamps were taken. And on the witness stand, Meders\n\nconceded that food stamps were found in his jacket just hours after the crime. In\n\naddition, Creel testified that after they got to the trailer park minutes after the\n\n\n\n\n 40\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 41 of 44\n\n\nshooting, Meders tried to give him and Arnold some of the food stamps that he had\n\ntaken from the store.\n\n Given all of that testimony, there was enough evidence to link the food\n\nstamps to the robbery. They were admissible and an objection to them would have\n\nbeen futile. The state court found that counsel’s failure to object to the\n\nintroduction of the food stamps was neither deficient performance nor prejudicial.\n\nThat is not only reasonable but also correct. It is not ineffective assistance of\n\ncounsel to fail to make an objection that is not due to be sustained. See Green v.\n\nGeorgia, 882 F.3d 978, 987 (11th Cir. 2018) (holding that the petitioner could not\n\npossibly have suffered Strickland prejudice where the objection that was not made\n\nwould have been futile); Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1297 (11th Cir.\n\n2017) (stating that “an attorney will not be held to have performed deficiently for\n\nfailing to perform a futile act, one that would not have gotten his client any relief”).\n\n As for counsel’s failure to argue to the jury that the food stamps found in\n\nMeders’ possession had not been positively connected to the robbery, it is not\n\nprejudicial for an attorney to fail to point out to the jury something that is obvious\n\nfrom the evidence. No one said that those food stamps could be traced to the store\n\nthat had been robbed. Reasonable jurists could find, as the state court did, that\n\nMeders has failed to show that if counsel had objected to the food stamps or argued\n\nthat they had not been identified as the ones taken in the robbery, Meders would\n\n\n\n 41\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 42 of 44\n\n\nhave been acquitted. Cf. Mansfield v. Sec’y, Dep’t of Corr., 679 F.3d 1301, 1311–\n\n12 (11th Cir. 2012) (holding that the district court should have deferred to the state\n\ncourt’s finding that “credited the testimony indicating that the food stamps found\n\nin [the defendant’s] room belonged to [the victim]” despite the fact that “the\n\nevidence did not establish with certainty that the food stamps found in [the\n\ndefendant’s] room belonged to [the victim]”).\n\n The state court rejected Meders’ ineffective assistance of counsel claim\n\ninvolving the failure to object to the admission of the cocaine citation seized from\n\nhis wallet on the ground that he had failed to establish prejudice. Although that\n\ncitation was admitted as evidence and given to the jury (along with other\n\ndocumentary evidence), it was never mentioned during the trial. Not once. Not\n\nonly that, but other evidence established that Meders had used and purchased\n\ndrugs. He admitted to the jury that he “smoked a little bit of dope” (marijuana)\n\nduring the afternoon of October 13, 1987. He also told the jury that he “had been\n\neating, or, well, what you call eating, had been taking some of them Valiums that\n\nday, earlier that day.” They were 10 milligram Valiums, he said, helpfully\n\ninforming everyone from the witness stand that a 10 milligram Valium “is actually\n\nthe biggest Valium you can get.” Meders also testified that he purchased drugs,\n\nexplaining that “any time I bought dope, I bought it from [Harris].” Meders’ own\n\n\n\n\n 42\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 43 of 44\n\n\nadmissions that he used drugs were backed up by the testimony of other witnesses\n\nthat he did.\n\n Based on the other evidence presented, the jury could reasonably conclude\n\nthat Meders’ drug use was the cause of the debt he allegedly owed. And even if\n\nhis drug use was not the cause of it, his debt was not “a critical fact for the\n\ndetermination of guilt,” anyway, as the district court noted. All of this means that\n\na fairminded jurist could agree with the state trial court’s ruling that Meders failed\n\nto show Strickland prejudice from counsel’s failure to object to the admission of\n\nthe cocaine citation. Even considering any purported cumulative effect from the\n\nadmission of the food stamps and cocaine citation and trial counsel’s failure to\n\npresent the impeachment evidence, a fairminded jurist could still conclude that it\n\nwas insufficient to undermine his confidence in Meders’ trial. See Reed v. Sec’y,\n\nFla. Dep’t of Corr., 767 F.3d 1252, 1263–64 (11th Cir. 2014).\n\n III. CONCLUSION\n\n Because our review is deferential, we need not determine whether our\n\ndecision would be the same if we were conducting a de novo review, though we\n\nrecognize that a different standard of review would make the questions in this case\n\ncloser ones. Looking through the AEDPA lens, we conclude that a fairminded\n\njurist could agree with the state trial court’s decision. Or put another way, not\n\nevery reasonable jurist would conclude that the state trial court’s decision was\n\n\n\n 43\n\f Case: 14-14178 Date Filed: 01/04/2019 Page: 44 of 44\n\n\ncontrary to or an unreasonable application of Supreme Court precedent. And for\n\nthat reason, the district court did not err in denying Meders’ petition for a writ of\n\nhabeas corpus.\n\n AFFIRMED.\n\n\n\n\n 44\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Jimmy Fletcher MEDERS, Petitioner-Appellant, v. WARDEN, GEORGIA DIAGNOSTIC PRISON, Respondent-Appellee.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-01-04\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 14-14178 Date Filed: 01/04/2019 Page: 1 of 44\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n Nos. 14-14178; 15-14734\\n ________________________\\n\\n D.C. Docket No. 2:07-cv-00090-LGW-JEG\\n\\n\\n\\nJIMMY FLETCHER MEDERS,\\n\\n Petitioner-Appellant,\\n\\n versus\\n\\nWARDEN, GEORGIA DIAGNOSTIC PRISON,\\n\\n Respondent-Appellee.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Georgia\\n ________________________\\n\\n On Petition for Rehearing by the Panel\\n\\n ––––––––––––––––––––––––\\n\\n (January 4, 2019)\\n\\nBefore ED CARNES, Chief Judge, MARCUS, and NEWSOM, Circuit Judges.\\n\\nED CARNES, Chief Judge:\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 2 of 44\\n\\n\\n The Appellant, Jimmy Fletcher Meders, filed a petition for rehearing en\\n\\nbanc, which under our rules also counts as a petition for panel rehearing. See 11th\\n\\nCir. R. 35, I.O.P. 2 (“A petition for rehearing en banc will also be treated as a\\n\\npetition for rehearing before the original panel.”); Cadet v. Fla. Dep’t of Corr., 853\\n\\nF.3d 1216, 1218 (11th Cir. 2017) (“At least until an order granting or denying the\\n\\npetition for rehearing en banc is issued, a panel retains authority to modify its\\n\\ndecision and opinion.”).\\n\\n The petition, insofar as it requests panel rehearing, is granted to the extent\\n\\nthat we vacate our earlier opinion, Meders v. Warden, Ga. Diagnostic Prison, 900\\n\\nF.3d 1330 (11th Cir. 2018), and issue this one in its place.\\n\\n The petition for rehearing en banc remains pending. In light of the issuance\\n\\nof this revised panel opinion, the Appellant is granted 21 days to file a supplement\\n\\nto his petition for rehearing en banc, if he wishes to do so. See Fed. R. App. P.\\n\\n40(a)(4)(C); cf. CSX Transp., Inc. v. Ala. Dep’t of Revenue, 888 F.3d 1163, 1188\\n\\nn.14 (11th Cir. 2018). He is not required to file a supplement. If he does file one\\n\\nand the Court desires a response from the Appellee, one will be requested.\\n\\n Our revised opinion follows:1\\n\\n\\n\\n 1\\n Our only revisions involve Part II of the opinion. We have removed the seven\\nparagraphs of the former opinion beginning with: “The Georgia Supreme Court denied Meders’\\n. . .” and ending with “hearing in the state trial court on remand.” In their place we have added\\nthe 10 paragraphs beginning with: “The Georgia Supreme Court denied Meders’ . . .” and\\nending with “that are relevant to the ineffective assistance of counsel claims.”\\n\\n\\n 2\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 3 of 44\\n\\n\\n Jimmy Fletcher Meders, a Georgia prisoner, filed a 28 U.S.C. § 2254\\n\\npetition in the Southern District of Georgia raising 18 claims. After the district\\n\\ncourt denied his petition, Meders moved for a certificate of appealability on several\\n\\nof his claims. The district court granted that motion only as to his claim alleging\\n\\nthat trial counsel was ineffective at the guilt phase of his trial. This is his appeal.\\n\\n I. BACKGROUND\\n\\n A. Facts\\n\\n The facts that follow in these two paragraphs are not disputed. On October\\n\\n13, 1987, Meders went to help his boss, Randy Harris, fix a car at Harris’ house.\\n\\nBill Arnold and Greg Creel later arrived at the house. Arnold is Harris’ cousin,\\n\\nand Creel is Arnold’s friend. Meders, Harris, Arnold, and Creel spent the\\n\\nafternoon drinking beer and liquor. The four of them went to a Best Western motel\\n\\nlater that evening, where Harris had rented a room for a young woman with whom\\n\\nhe was having an extramarital affair. Meders, Arnold, and Creel left the motel\\n\\nlater that night.\\n\\n Around 2:35 the next morning (October 14), the three men stopped by a\\n\\nJiffy Store. Don Anderson, the store clerk, was shot twice — once in the chest,\\n\\nonce in the head — and he died. The weapon used in the shooting was a Dan\\n\\nWesson .357 Magnum revolver. Meders took between $31 and $38 from the cash\\n\\nregister. Included in the cash taken were two $1 bills and a $5 bill that the store\\n\\n\\n\\n 3\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 4 of 44\\n\\n\\nmanager had planted as bait money — she had written down the three bills’ serial\\n\\nnumbers and kept them in the store’s records so that the money could be identified\\n\\nif the store was robbed and the money was recovered. That bait money and some\\n\\nfood stamps were found in Meders’ wallet and in his house after he was arrested\\n\\nlater that same day. The murder weapon was found under his bed two days later.\\n\\n B. The Trial\\n\\n Meders was indicted in Georgia state court in December 1987 for the murder\\n\\nand armed robbery of Anderson, the store clerk. The case proceeded to a jury trial.\\n\\n 1. The State’s Witnesses\\n\\n Because the claim Meders presses in this Court involves the trial testimony\\n\\nof several of the State’s witnesses, we recount their testimony in some detail.\\n\\n The State first called Harris to the stand. He testified that he spent the\\n\\nafternoon of October 13 drinking with Meders, Arnold, and Creel. He paid Meders\\n\\nabout $200 for his work on a car, and while they were sitting around drinking and\\n\\ntalking, Meders kept mentioning that he owed some people in Florida $2,000 for\\n\\nsome drugs, and that they were “going to come down here and kill him if he didn’t\\n\\npay them.”\\n\\n Harris testified that later that evening all four men went to a Best Western\\n\\nmotel. They continued to drink, “smoked a joint or two,” and sat around talking in\\n\\nthe motel room. Meders, Arnold, and Creel left the motel around 8:30 p.m. but\\n\\n\\n\\n 4\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 5 of 44\\n\\n\\nMeders returned to it around 3:15 a.m. After he did so, according to Harris,\\n\\nMeders pulled out a revolver and told him: “I just blowed a man’s head off over\\n\\n$38.00.” Harris thought he was joking, so Meders threw some cash and some\\n\\n“little white pieces of paper” about “the same size [as] a dollar bill” on the bed.\\n\\nMeders also opened the revolver’s chambers and dumped the bullets on the bed.\\n\\nHarris said that two of the bullets had been “freshly fired.” He testified that\\n\\nMeders picked up the cash and the pieces of paper, put them back in his pocket,\\n\\nand left the motel.\\n\\n Harris testified that around that same time, Arnold called his motel room and\\n\\nasked Harris to pick up Creel and him from a trailer park. Harris drove Creel’s\\n\\ntruck to the trailer park, picked up both of them, and took them to Harris’ house.\\n\\nAfter arriving at his house around 4:00 or 5:00 a.m., Harris urged the two of them\\n\\nto go to the police and report what had happened. He testified that the three of\\n\\nthem talked for about an hour and then all three went to sleep at his house. Around\\n\\n9:00 a.m., Harris woke up and went to his shop; the police questioned him there\\n\\nand then took him to the police station for more questioning.\\n\\n Creel testified next for the State. He stated that he, Harris, Arnold, and\\n\\nMeders had spent the afternoon of October 13 drinking before going to the Best\\n\\nWestern later that evening. After spending a few hours in the motel room, he,\\n\\nArnold, and Meders left and went riding around, stopping at a couple of bars.\\n\\n\\n\\n 5\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 6 of 44\\n\\n\\nArnold was driving, Meders was in the passenger seat, and Creel was in the back\\n\\nseat. They later stopped at a Jiffy Store because Creel was hungry. He testified\\n\\nthat both he and Meders got out of the car and went into the store. Once inside,\\n\\nCreel grabbed a Yoo-hoo and a package of sausage and biscuits. While he was\\n\\nheating up his sausage and biscuits in a microwave in the back of the store, he\\n\\nheard a gunshot. He turned around and saw the store clerk falling against the wall\\n\\nand Meders facing the wounded clerk.\\n\\n Creel testified that he “tore out” of the store, and as he was running out, he\\n\\nheard a second gunshot. He exited the store, jumped in the back seat of the car,\\n\\nand told Arnold to “go” because Meders had “just shot a man.” He recounted how\\n\\nMeders had run out of the store, jumped in the front passenger seat of the car, and\\n\\npointed his gun at Arnold and Creel. Arnold drove to Shady Acres, a trailer park,\\n\\nwhere he and Creel got out. Meders got in the driver’s seat, and Arnold told\\n\\nMeders “to never come around him again.” Meders asked Arnold and Creel if they\\n\\nwanted any of the money or food stamps he had taken from the store. They both\\n\\nsaid no, that they didn’t want any part of it. Creel and Arnold then walked to one\\n\\nof the trailers where they called Harris to pick them up. Creel testified that he\\n\\ndidn’t know Meders until the day before the shooting, that he didn’t know that\\n\\nMeders had a gun until the shooting, and that he had no idea that Meders was\\n\\n\\n\\n\\n 6\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 7 of 44\\n\\n\\ngoing to rob the store or shoot the clerk. He also stated that he had given the police\\n\\ntwo statements about the incident: one on October 15, and one a few weeks later.\\n\\n On cross-examination Creel confirmed that, after they all were finished\\n\\ndrinking at Harris’ house, they did not take Meders back to his house but instead\\n\\nwent to the Best Western. For that reason, Creel thought Meders “must have” had\\n\\nthe gun on him during the afternoon of October 13. Defense counsel also asked\\n\\nCreel whether he shot at a couple of trucks while they were riding around that\\n\\nevening. Creel testified that he did not — that he didn’t even know Meders had a\\n\\ngun until the shooting inside the store.\\n\\n The State next presented Arnold, who is Harris’ cousin. For the most part\\n\\nArnold’s testimony tracked Creel’s. Arnold testified that he had grown up with\\n\\nCreel and that he had known Meders for about “a year or two” before the shooting.\\n\\nArnold told how, after the four of them spent the afternoon of October 13 drinking,\\n\\nthey all went to a room at the Best Western, and later he, Creel, and Meders left\\n\\n(without Harris) to go riding around. In the early morning hours of October 14,\\n\\nthey stopped at a Jiffy Store because Creel was hungry and Meders wanted some\\n\\ncigarettes. After Arnold parked the car, Creel and Meders both went inside the\\n\\nstore. The next thing Arnold heard was a gunshot, and the next thing he saw was\\n\\nCreel running out of the store. Then Arnold heard another shot, and Creel jumped\\n\\nin the car and “hollered that Jimmy [Meders] had just killed that man.” Meders\\n\\n\\n\\n 7\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 8 of 44\\n\\n\\nthen jumped in the car, waved his gun around and pointed it at Arnold and Creel,\\n\\nand told Arnold to drive off and “get away from the store.”\\n\\n Which Arnold did. He drove them to the Shady Acres Trailer Park, where\\n\\nhe and Creel got out of the car and refused to take any of the cash Meders had\\n\\nstolen. Meders got in the driver’s seat and drove off, while Arnold and Creel went\\n\\ninto a friend’s trailer and called Harris and asked him to pick them up. Arnold\\n\\ntestified that Harris picked them up and they all went to Harris’ house, where he\\n\\ntold them that they should go to the police. Instead, the three went to sleep.\\n\\nArnold went to the police station the next morning, October 15, to give a\\n\\nstatement.\\n\\n On cross-examination Arnold testified that he did not take Meders back to\\n\\nhis house in the hours before the shooting but that they did stop by a bar while they\\n\\nwere driving around. He stated that no one in the car had “shot at a truck” while\\n\\nthey were driving around.\\n\\n Margaret Clements, who was the manager of the Jiffy Store at the time of\\n\\nthe shooting, was the next witness for the State. She testified that a couple of days\\n\\nbefore the shooting she had recorded the serial numbers from a $5 bill and two $1\\n\\nbills, and that those three bills were put in a money clip in the register to use as the\\n\\nstore’s “bait money.” When the bait money was removed from the register, it\\n\\nwould trigger a silent alarm. She said that when she went to the store after the\\n\\n\\n\\n 8\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 9 of 44\\n\\n\\nshooting, between $31.00 and $38.00 — which included the $7.00 in bait money\\n\\n— had been taken from the register, but she couldn’t determine how many food\\n\\nstamps were taken. She also testified that a receipt was left sticking out of the\\n\\nregister, which showed a transaction for 51 cents at 2:35 a.m. on October 14, 1987.\\n\\n The State then presented several witnesses who testified about the scene of\\n\\nthe crime, the evidence related to the crime, and the police department’s\\n\\ninvestigation of the crime.2 Among them was Charles Byerley, an investigator\\n\\nwith the county police department, who testified about the evidence found during\\n\\nthe search of Meders’ house. He and two other officers found a holster containing\\n\\nseveral rounds of .357 Magnum bullets. They also found a dollar bill that was torn\\n\\nin half sitting on top of a television in the house. Byerley testified that the torn\\n\\ndollar bill had the same serial number as one of the $1 bills from the Jiffy Store’s\\n\\nbait money. He also stated that after Meders was arrested later that day, he had\\n\\ninventoried Meders’ wallet and found $82 in cash, as well as some food stamps.\\n\\n\\n 2\\n Abe Brown, the Glynn County coroner, and David Griffin, the county medical\\nexaminer, testified about Anderson’s gunshot wounds and the cause of his death. Charlie\\nBeasley from the Glynn County Police Department’s evidence and investigation unit testified\\nthat he secured the evidence from the crime scene and a few days later he delivered it to Roger\\nParian, a firearms examiner from the Georgia Bureau of Investigation. Parian testified that,\\nbased on the evidence from the crime scene, the two .357 Magnum bullets recovered there came\\nfrom the Dan Wesson .357 revolver that Beasley had provided to him.\\n Greg McMichael, a Glynn County police officer at the time of the shooting, testified that\\nwhen he responded to the call at the Jiffy Store, he passed a car with several occupants driving\\naway from the location of the Jiffy Store. And Matthew Doering, a detective from the Glynn\\nCounty Police Department, testified that on October 14 he found that same car at Meders’ house.\\nAfter impounding it, he searched the car and found a “Dandy Sausage Biscuits” wrapper.\\n\\n\\n 9\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 10 of 44\\n\\n\\nThe serial numbers of a $1 bill and a $5 bill from Meders’ wallet matched the\\n\\nserial numbers of the other $1 bill and the $5 bill from the bait money.3 A Georgia\\n\\ncitation for the sale of cocaine was also found in Meders’ wallet and it was\\n\\nadmitted into evidence.\\n\\n The State called Jack Boyet as its last witness. Boyet was a detective with\\n\\nthe Glynn County Police Department at the time of the murder. He responded to\\n\\nthe scene at the Jiffy Store and also went with two other officers to Meders’ house\\n\\nlater that morning to question him. At the house Boyet told Meders that he had\\n\\nsome questions about a homicide at the Jiffy Store, and Meders falsely stated that\\n\\nhe didn’t know anything about it. Boyet then asked Meders whether he had a gun\\n\\nor knife on him, and Meders admitted that he did. The officers took a “small .22\\n\\npistol,” which was loaded and had a shell in the chamber, from the right pocket of\\n\\nhis jacket. They also found 17 food stamps in the left pocket of Meders’ jacket.\\n\\nAfter reading him his Miranda rights, Boyet asked him if he had any other firearms\\n\\nin the house, and Meders said he had a .357 revolver. The officers obtained that\\n\\nfirearm (a fully loaded Ruger Black Hawk .357 revolver) and the .22 pistol and\\n\\ntook Meders to the station for more questioning.\\n\\n\\n\\n\\n 3\\n Neal Harrell, a special agent with the Georgia Bureau of Investigation, testified that he\\nwent with Byerley to Meders’ house around 11:15 a.m. on October 14, and confirmed that he\\nand Byerley discovered the evidence that Byerley testified about at trial.\\n\\n\\n 10\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 11 of 44\\n\\n\\n Detective Boyet told the jury that at the police station Meders again stated\\n\\nthat he didn’t know anything about the robbery-murder and had not gone to the\\n\\nJiffy Store. He claimed, instead, that he had been at the Best Western and had\\n\\ngone home around midnight. Boyet then informed Meders that Harris had just\\n\\ngiven a statement to detectives that Meders had told him that he “had blew a man’s\\n\\nhead off for $38.00.” Meders denied saying that and told Boyet that Harris was\\n\\n“trying to get him” because he thought Meders was having an affair with his wife.\\n\\nAfter Boyet finished interviewing him, Meders was arrested.\\n\\n Boyet testified that on October 16, Harris came to the police station and said\\n\\nthat he “had received information” that the gun used in the shooting was under\\n\\nMeders’ waterbed. Boyet executed a search warrant at Meders’ house that day and\\n\\nfound a Dan Wesson .357 Magnum revolver “under the center of the [waterbed’s]\\n\\nmattress.” The firearms examiner later concluded that the revolver had fired the\\n\\ntwo bullets that killed the Jiffy Store clerk.\\n\\n Boyet also testified that on November 14, 1988 — a year and one month\\n\\nafter the murder and Meders’ first statement to police, and four months before the\\n\\ntrial — Meders asked to talk with him again. Despite his previous statements\\n\\ndenying that he knew anything about the crime, Meders now told Boyet a different\\n\\nstory. Here’s how Boyet recounted on the witness stand Meders’ new story:\\n\\n He said that he first got with Bill Arnold and Greg Creel on the\\n afternoon of October 13th, 1987. . . . They drank beer, smoked several\\n\\n 11\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 12 of 44\\n\\n\\n joints, got high, got drunk, and they [ ] went to a motel room where\\n Randy Harris was [ ] with a girl. . . .\\n\\n They rode around that afternoon and took him home. He was\\n drunk, passed out on the couch. Around 11:00 [p.m.] they came back\\n to his house. Bill Arnold woke him up and told him they needed him\\n to go with him, and to bring his gun. He told the[m] he didn’t want to\\n go, said we need you to go, get your gun and come with us, said he got\\n his gun, the Dan Wesson revolver out from under the couch, got in the\\n car with them. At that time they went to the Best Western Motel where\\n Randy and Sandra Ruggles were at. At that point [Harris] and [Arnold]\\n got over in the side of the room, were whispering low voices. He\\n couldn’t understand what they were saying. [Arnold, Creel, and\\n Meders] then got in the Roadrunner and left, went riding around, rode\\n around the County. At one point Bill Arnold took the gun, the Dan\\n Wesson, and shot at a truck. They shot at a . . . flower shop . . . on 303,\\n shot a new Chevy truck somewhere on 303. They passed a young man\\n by the name of Keith Bowen on Community Road. [Arnold] asked\\n [Meders] to shoot [Bowen], or give him a gun, he would shoot him, and\\n [Meders] said he got scared and told him he was crazy, and they kept\\n riding. Said they rode several hours still drinking. They pulled into the\\n Jiffy Store to get something to eat at Marshes of Mackay. All three\\n went in. He said Creel went to the back, got something, put it in a\\n microwave oven. He stayed up by the counter, didn’t go any further\\n because he was drunk. Said at that time Bill Arnold pulled out the gun,\\n shot the man, that he fell. He shot him again, and [Meders] said he told\\n him, you shot that man. He said [Arnold] laughed, and said, yes, no\\n witnesses, get the money. Then he said he then took the money out of\\n the cash register. They got in the car and left. After leaving there, they\\n went to Shady Acres Trailer Park. . . . [Creel] and [Arnold] got out of\\n the car there, left him with the car, said he left the gun with [Arnold].\\n He drove directly home, did not go anywhere, and went to bed.\\n\\nMeders also told Boyet that he did not go to Harris’ motel room after the murder,\\n\\nthat Harris had told him later that morning that the best thing he could do is keep\\n\\nhis mouth shut about the shooting, and that Harris had put the gun under Meders’\\n\\nmattress. Boyet testified that Meders said he had waited more than a year to tell\\n\\n\\n 12\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 13 of 44\\n\\n\\nthe police about the incident because he was scared of what would happen if he\\n\\ntold them. Boyet confirmed that he had not found any evidence that Arnold or\\n\\nCreel ever had the gun that killed the store clerk, or any evidence that corroborated\\n\\nMeders’ story about what had happened.\\n\\n Defense counsel then cross-examined Boyet. Boyet stated that when he\\n\\nquestioned Creel and Arnold on October 15 about whether they had shot at a truck\\n\\nas they were riding around during the night of October 13, they both denied it.\\n\\nDefense counsel then asked: “And did you have any reason to, to doubt that they\\n\\nwere telling you the truth?” Boyet responded: “The only thing I had to indicate\\n\\nthat they did do it was, is Jimmy Meders saying that they did.” He added: “There,\\n\\nthere is no other evidence to indicate that they did. There, there are no witnesses\\n\\nthat saw it other than the, the three who were allegedly in the [car], and I have no\\n\\nproof that they did do it.”\\n\\n 2. The Defense Witnesses\\n\\n The State rested, and the defense presented its case. Five witnesses testified\\n\\nfor the defense before Meders himself took the stand. His wife Sherry testified that\\n\\nMeders had passed out from drinking around 10:00 p.m. on October 13, 1987, that\\n\\nArnold came inside their house later that night asking to borrow a gun, and Meders\\n\\nleft the house with him. On cross-examination Sherry Meders admitted telling\\n\\nofficers on October 14 that she did not know whether her husband had left the\\n\\n\\n\\n 13\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 14 of 44\\n\\n\\nhouse during the previous night and that she did not tell them that Arnold came by\\n\\nthe house to pick up Meders or Meders’ gun. She had told the police that Meders\\n\\nhad, among other guns, two .357 caliber guns in the house. She testified that she\\n\\nnever told Harris that the murder weapon was under Meders’ waterbed.\\n\\n Wayne Martin, a friend of Meders, testified that after going by the Best\\n\\nWestern for about 10 minutes on the night of October 13, he and Meders went to\\n\\nMeders’ house to drink some beer. He stated that when he left around 10:00 p.m.\\n\\nMeders was “passed out . . . on the couch.” Martin stated that a couple of months\\n\\nafter the shooting, Meders told him that he had been with Arnold and Creel at the\\n\\ntime of the shooting, that they had his gun, but that he didn’t remember what\\n\\nhappened during the shooting.\\n\\n Meders’ brother and his brother’s wife both testified that they saw Meders\\n\\naround 2:25 a.m. on October 14, that he was with Arnold and Creel then, and that\\n\\nthe three men had a gun in the car. His brother also stated that about six to seven\\n\\nmonths after the shooting, Meders told him that either Arnold or Creel had shot the\\n\\nclerk. Another witness testified that he saw Arnold at a bar around 5:00 or 6:00\\n\\np.m. on October 14, the day of the murder, and that Arnold told him and a few\\n\\nothers that he had to go see Harris and Creel to “see what the deal was” and “get\\n\\nthe story straight.”\\n\\n\\n\\n\\n 14\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 15 of 44\\n\\n\\n Finally, Meders testified on his own behalf. He said that during the\\n\\nafternoon of October 13, 1987, he and Harris took two 10 milligram Valiums each\\n\\nand drank some beer at the auto shop before Arnold and Creel met them at Harris’\\n\\nhouse, where they all drank some more. He stated that Harris gave him $250 for\\n\\nsome work he had done on a car, and Harris also bought a bulldog from Creel for\\n\\n$50. Meders testified that he, Arnold, and Creel “felt like getting drunk” so they\\n\\nwent to the liquor store and bought some alcohol. Around 5:30 p.m., Meders felt\\n\\nlike he had “had enough to drink,” so he stopped drinking — at least for a little\\n\\nwhile. He said that Harris then told him, Arnold, and Creel that he had to go pick\\n\\nhis wife up from work, so Arnold and Creel drove Meders home.\\n\\n Meders testified that later that night, his friend Wayne Martin took him to\\n\\nthe motel room that Harris had rented. Meders and Harris talked for a little while,\\n\\nthen Martin took Meders back home, where Meders drank some beer and passed\\n\\nout on the couch. The next thing Meders recalled was Arnold waking him up\\n\\naround 11:00 or 11:30 p.m. insisting that he “go with him.” Arnold picked him up\\n\\nunder the arms, and then as they were leaving Meders’ house Arnold grabbed the\\n\\nDan Wesson .357 Magnum, which was the murder weapon. They got in the car\\n\\nwith Creel and went to Harris’ motel room. Meders testified that after leaving the\\n\\nmotel, Arnold drove Creel and Meders by two houses. He said that Arnold and\\n\\nCreel had gotten in a fight with some people (one of whom was a man named\\n\\n\\n\\n 15\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 16 of 44\\n\\n\\nKeith Bowen) and “wanted revenge,” and as the three men were driving by those\\n\\ntwo houses, Arnold fired Meders’ gun twice — once at a dark truck parked at one\\n\\nhouse, and the other time at a white truck parked at the other house. Meders then\\n\\ntold Arnold to take him home because he didn’t want to be involved in any trouble.\\n\\n According to Meders, Arnold did not take him home but instead drove to a\\n\\nconvenience store. After that Meders started driving the car, and as he was\\n\\nheading back to his house, he saw his brother and his brother’s wife making a\\n\\ndeposit at a bank “right around the corner from [his] house.” When they stopped at\\n\\nthe bank to talk to Meders’ brother and sister-in-law, Arnold got back in the\\n\\ndriver’s seat. They then drove to another convenience store, and Arnold went in\\n\\nwith Meders’ gun in his pocket while Creel and Meders sat in the car. Meders\\n\\ntestified that they thought Arnold was just “kidding” around by taking the gun\\n\\ninside.\\n\\n Meders testified that after Arnold returned to the car, he drove to the Jiffy\\n\\nStore, and all three men went inside. Meders testified that he and Arnold were\\n\\nstanding near the counter while Creel went to the microwave. He stated that out of\\n\\nnowhere, Arnold “pulled the gun and shot” the clerk twice, then told Meders: “No\\n\\nwitnesses. Get the money.” Meders grabbed the money out of the cash register,\\n\\nand the three men exited the store “pretty quickly,” got in the car, and Arnold\\n\\ndrove to Shady Acres Trailer Park, where he and Creel got out. Meders told\\n\\n\\n\\n 16\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 17 of 44\\n\\n\\nArnold to keep the gun, that he didn’t want it back, and then he drove back to his\\n\\nhouse. He testified that after getting to his house, an officer pulled up and told him\\n\\nthat he had a brake light out. Meders went inside and went to sleep on the couch.\\n\\n Later that morning Harris came by Meders’ house and told him to “go on to\\n\\nwork” and that he would be there shortly. Meders testified that Harris later told\\n\\nhim at the shop that he should keep his mouth shut and “let [it] blow over” because\\n\\nMeders had a wife and child to take care of. Meders went back to his house, and\\n\\nseveral officers showed up. He told the officers multiple times that he did not\\n\\nknow anything about the shooting, which he admitted at trial was not true. Meders\\n\\nwent to the police station around 11:15 that morning and, as he claimed that Harris\\n\\nhad advised him, told the officers again that he did not know anything about the\\n\\nrobbery-murder.\\n\\n Meders acknowledged at trial that he did not tell Detective Boyet that he\\n\\nwitnessed the shooting until more than a year after the murder. He also conceded\\n\\nthat although he did not know how the torn $1 bill from the bait money ended up\\n\\non his television, the officers did find the other two bills of the bait money (the $5\\n\\nbill and the other $1 bill) in his wallet. And he acknowledged that the officers\\n\\nfound the murder weapon under his bed after Harris told them on October 16,\\n\\n1987, exactly where to find it. He claimed that he had no idea how the firearm got\\n\\nthere.\\n\\n\\n\\n 17\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 18 of 44\\n\\n\\n 3. The State’s Rebuttal Witnesses\\n\\n Harris and a Brunswick City police officer testified in rebuttal for the State.\\n\\nHarris admitted that he had previously pleaded guilty to selling marijuana. He also\\n\\ntestified that it was Meders’ wife Sherry who had told him where the murder\\n\\nweapon was.\\n\\n The city police officer testified that around 3:30 a.m. on October 14, 1987,\\n\\nhe saw a vehicle speeding about a quarter mile from Meders’ house, and he later\\n\\nlocated that vehicle at Meders’ house. After he stopped in front of the house\\n\\nMeders came out to see “what was wrong.” The officer asked Meders if he had\\n\\nbeen driving the vehicle, and Meders, who was acting “very, very nervous,” told\\n\\nthe officer that he had just driven it back from the Amoco station where he had\\n\\ncalled his girlfriend, and that he was nervous because his wife “would kill him” if\\n\\nshe found out that he had a girlfriend.\\n\\n 4. The Closing Arguments\\n\\n The State waived its opening argument to the jury but reserved the right to\\n\\nconclude. Defense counsel argued in closing that the State had allowed Harris,\\n\\nArnold, and Creel to “design its case,” and he pointed out inconsistencies between\\n\\ntheir testimonies. He told the jury that he didn’t believe the “Arnold-Creel-Harris\\n\\nversion of this case speaks the truth” and argued that Harris planted the murder\\n\\nweapon under Meders’ bed.\\n\\n\\n\\n 18\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 19 of 44\\n\\n\\n The State told the jurors in its closing argument that they would have to\\n\\njudge the credibility of the witnesses, and that “Randy Harris, Bill Arnold, Greg\\n\\nCreel, [and] the police officers all told the same story all the way down the line\\n\\nfrom day one.” It argued that Meders, his wife, and Martin had made up their\\n\\nstories about a year after the incident. And it noted that Meders had never\\n\\nexplained what he did in the “twenty-five minute[ ]” gap between leaving the\\n\\nShady Acres Trailer Park and arriving at his house. The State argued that what he\\n\\nhad done was stop by the Best Western and tell Harris what he had done, just as\\n\\nHarris had recounted to the jury. The State pointed out that Meders had several\\n\\nopportunities to tell the police what he knew about the crime, but he failed to do so\\n\\nuntil more than a year after the murder — unlike Harris, Arnold, and Creel.\\n\\n 5. The Jury Verdict and Sentence\\n\\n During its deliberations, the jury asked six questions, three of which Meders\\n\\ndiscusses in his briefs to this Court:\\n\\n During the execution of the first search warrant, was the bedroom\\n searched, if so was the waterbed searched?\\n Can fingerprints be taken and if so were they taken on the waterbed\\n mattress??\\n [Were] there any reports filed on the incident of the truck, on Ga Hwy\\n 303, [r]eported between the day after or between then and now, being\\n shot at??\\n\\nThe court told the jury that it could not “respond to you in any regard concerning\\n\\nthe evidence in this case,” and that the jury must base all of its findings on the\\n\\n\\n 19\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 20 of 44\\n\\n\\nevidence that had been presented to it. After two hours of deliberations, the jury\\n\\nreturned a guilty verdict on the charges of malice murder and armed robbery.\\n\\nMeders was sentenced to death for the murder offense and to a consecutive life\\n\\nsentence for the armed robbery offense. (There are no sentence stage issues in this\\n\\nappeal.)\\n\\n C. The Direct Appeal and Remand Proceedings\\n\\n Meders appealed his convictions and sentences to the Georgia Supreme\\n\\nCourt. See Meders v. State, 389 S.E.2d 320 (Ga. 1990). Although his trial counsel\\n\\ninitially represented him in the appeal, other counsel appeared for him and filed a\\n\\nnew brief on his behalf that “raised questions about the effectiveness of trial\\n\\ncounsel.” Id. at 324. Because the ineffective assistance of trial counsel was raised\\n\\nfor the first time on appeal by Meders’ new attorney, the Georgia Supreme Court\\n\\ngranted the State’s request to remand the case to the trial court for a hearing on that\\n\\nissue. Id. at 325. Before doing so, it rejected all of Meders’ other claims of error.\\n\\nId. at 321–24.\\n\\n At the remand hearing Meders contended that his trial counsel was\\n\\nineffective during the guilt phase for:\\n\\n [1] failing to use police incident reports found in the prosecutor’s open\\n file and failing to develop testimony of the shootings near Highway 303\\n that corroborated [his] trial testimony and impeached the testimony of\\n the State’s key witnesses; [2] failing to utilize prior inconsistent\\n recorded statements of the State’s three eyewitnesses found in the\\n prosecutor’s open file; [3] failing to object to the admission of an\\n\\n 20\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 21 of 44\\n\\n\\n unadjudicated citation for cocaine sales; [and] [4] failing to object to\\n the admission and use of food stamps based upon a note in the\\n prosecutor’s open file that the food stamps could not be linked to the\\n robbery.\\n\\nThe evidence presented at the hearing included the complete files of the prosecutor\\n\\nand of Meders’ trial counsel as well as documents from the Glynn County Police\\n\\nDepartment relating to Meders’ case.\\n\\n The prosecutor’s file contained pretrial statements from Harris, Arnold, and\\n\\nCreel, including transcripts of Harris’ October 14, 1987 interview and of Arnold’s\\n\\nand Creel’s October 15 interviews. There were several inconsistencies between\\n\\nthose pretrial statements and trial testimony. For example, in their pretrial\\n\\nstatements Arnold and Creel told the police that they had taken Meders home and\\n\\npicked him up on the night of October 13, but in their trial testimony they denied\\n\\ndoing that. Creel’s pretrial statement showed that he told the police he knew\\n\\nMeders had a gun when Meders went into the Jiffy Store, but he testified at trial\\n\\nthat he did not know about the gun until Meders actually shot the clerk.\\n\\n A report prepared by Boyet shows that when the police went to Harris’ body\\n\\nshop around 11:00 a.m. on October 14, Harris told them that he had not seen\\n\\nMeders since the night before and he did not say anything about the shooting or\\n\\nMeders’ involvement in it. But at the police station just over an hour later, Harris\\n\\ntold the police that Meders had stopped by his motel room around 3:00 to 4:00 that\\n\\nmorning and told him that he had just “killed a man over $38.” Harris also told the\\n\\n 21\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 22 of 44\\n\\n\\nofficers that Meders did not say where (that is, in what part of the body) he had\\n\\nshot the clerk but “just [that] he shot him.” At trial Harris had testified that Meders\\n\\nstopped by his motel room around 3:15 a.m. and told him that: “I just blowed a\\n\\nman’s head off over $38.00.”\\n\\n The pretrial statements also show that Harris told the officers on October 14\\n\\nthat he had no idea where Meders would keep the murder weapon. Two days later\\n\\nhe told Boyet that he “had been thinking about it and the only place he could think\\n\\nof where Meders would have hidden the gun he used was the water bed in\\n\\nMeders[’] bedroom.” At trial, however, he had testified that Meders’ wife Sherry\\n\\nhad told him where the gun was located.\\n\\n The prosecutor’s file also contained two police reports that supported\\n\\nMeders’ trial testimony about the truck shootings and contradicted the testimony of\\n\\nArnold, Creel, and Detective Boyet on that subject. One police report stated that\\n\\naround 12:30 a.m. on October 14, a car passed by the complainant’s house several\\n\\ntimes and someone in the car “fired a shot” on the last pass. The bullet struck the\\n\\nwall near the house, missing the truck parked in the driveway “by about a foot.”\\n\\nThe complainant’s son was Keith Bowen — the same person that Meders testified\\n\\nhad been in a fight with Arnold and Creel. See supra at 16. The other report stated\\n\\nthat around 1:30 that same morning, someone “fired a round” at the complainant’s\\n\\ntruck, and that the complainant “feels that the incident was caused by Larry\\n\\n\\n\\n 22\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 23 of 44\\n\\n\\nBrockington and Greig [sic] Creel due to some problems he has had with them in\\n\\nthe past.”\\n\\n Finally, the prosecutor’s file also contained a note that stated “[u]nable to\\n\\ntrace any food coupons to store,” as well as a report by a Glynn County police\\n\\nofficer stating that Sherry (Meders’ wife) had told the officer that she and Meders\\n\\nwere legally receiving food stamps. Less favorable to Meders, that same report\\n\\nindicated that during the first search of Meders’ house the officers had looked\\n\\n“around the bottom outside area” of the waterbed but not underneath it.\\n\\n In addition to that evidence, Meders presented twelve witnesses at the\\n\\nremand hearing.4 His counsel at the hearing questioned several of those witnesses\\n\\nabout the shootings involving the two trucks and about the witnesses’ relationships\\n\\nwith Meders, Arnold, or Creel. One witness — the owner of one of the trucks —\\n\\ntestified that he had a bad relationship with Creel, and another witness testified that\\n\\nthe officer who took the police report about one of the truck shootings told her that\\n\\nthe bullet from the truck shooting “was the same type [of] bullet that had killed”\\n\\nthe Jiffy Store clerk.\\n\\n Meders’ counsel also questioned Boyet about the police reports and the\\n\\ninconsistencies between the pretrial statements and the trial testimony of Harris,\\n\\n\\n 4\\n Because Meders’ trial counsel was hospitalized shortly before the remand hearing, he\\ncould not be called as a witness. Nor could he be called as a witness in the later state habeas\\nproceedings because he died before they began.\\n\\n\\n 23\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 24 of 44\\n\\n\\nArnold, and Creel. Boyet confirmed that before the trial he had talked to Arnold\\n\\nand Creel about the truck shootings and that they both had denied any involvement\\n\\nin them. Boyet conceded that he was unable to link to the Jiffy Store any of the\\n\\nfood stamps that were admitted into evidence, he had never testified he could.\\n\\n No copies of the pretrial statements of Arnold, Creel, or Harris were found\\n\\nin Meders’ trial counsel’s file. And nothing in his trial counsel’s file suggested\\n\\nthat he had reviewed those witnesses’ pretrial statements. Nor did his file contain\\n\\ncopies of the police reports. Based on the evidence presented at the remand\\n\\nhearing, Meders argued that his trial counsel was ineffective for failing to use the\\n\\npretrial statements and police reports to corroborate Meders’ testimony and\\n\\n“undercut the credibility of the [State’s] prime accusers against [him],” and for\\n\\nfailing to object to the admission of the food stamps and the citation (that was\\n\\nfound in his wallet) for the sale of cocaine. He contended that those failures\\n\\nprejudiced him, and he asked for a new trial.\\n\\n The state trial court ruled that Meders had failed to show that he was\\n\\nprejudiced by his trial counsel’s alleged deficiencies. As a result, it denied his\\n\\nclaim that his counsel was ineffective during the guilt phase of his trial. The\\n\\nGeorgia Supreme Court affirmed. Meders v. State, 411 S.E.2d 491 (Ga. 1992). As\\n\\nto Meders’ ineffective assistance claim, the Georgia Supreme Court’s ruling stated\\n\\nin its entirety: “The trial court’s nine-page order persuasively demonstrates that\\n\\n\\n\\n 24\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 25 of 44\\n\\n\\nMeders has failed to overcome the strong presumption that Meders’ trial counsel\\n\\nperformed effectively.” Id. at 492 (quotation marks omitted). The United States\\n\\nSupreme Court denied Meders’ petition for a writ of certiorari. Meders v. Georgia,\\n\\n506 U.S. 837, 113 S. Ct. 114 (1992). That ended the direct appeal.\\n\\n D. The State Habeas Proceedings\\n\\n A couple of years later, in April 1994, Meders filed a state habeas petition.\\n\\nAfter conducting evidentiary hearings, the state habeas court granted relief on\\n\\nMeders’ claim alleging ineffective assistance of counsel at the guilt phase, but it\\n\\ndenied relief on his other claims. The State and Meders both appealed. The\\n\\nGeorgia Supreme Court reversed the grant of relief on Meders’ ineffective\\n\\nassistance claim, explaining that the claim was procedurally barred because it had\\n\\nalready been litigated on the merits in the direct appeal. Schofield v. Meders, 632\\n\\nS.E.2d 369, 372 (Ga. 2006); see id. at 373 (“The record in this case clearly\\n\\nestablishes that the habeas court granted relief on claims that had been raised in\\n\\nessentially the identical form in the hearing held on remand to the trial court.”). It\\n\\naffirmed the state habeas court’s denial of relief on the other claims and reinstated\\n\\nMeders’ convictions and sentences. Id. at 372.\\n\\n E. The Federal Habeas Proceedings\\n\\n Meders filed a 28 U.S.C. § 2254 petition in July 2007 and an amended\\n\\npetition in January 2012. The district court ruled that Meders’ trial counsel’s\\n\\n\\n\\n 25\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 26 of 44\\n\\n\\nperformance at the guilt phase was deficient but concluded that the trial court’s\\n\\nruling on remand in the direct appeal that Meders could not establish prejudice was\\n\\nnot an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104\\n\\nS. Ct. 2052 (1984). See 28 U.S.C. § 2254(d)(1). On that basis it denied his\\n\\npetition. Meders later moved for a certificate of appealability on several claims,\\n\\nand the district court granted one on a single general issue: whether Meders’ trial\\n\\ncounsel was ineffective during the guilt phase of his trial.\\n\\n II. DISCUSSION\\n\\n For a third of a century it has been established that counsel does not render\\n\\nineffective assistance unless he performs outside “the wide range of reasonable\\n\\nprofessional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Even\\n\\nthen, the claim is not established and no relief is due unless the petitioner\\n\\naffirmatively proves that the errors of counsel had not just “some conceivable\\n\\neffect on the outcome of the proceeding” but “that they actually had an adverse\\n\\neffect on the defense.” Id. at 693, 104 S. Ct. at 2067.\\n\\n As for how adverse, and how likely, the effect of the attorney’s errors must\\n\\nbe: “The defendant must show that there is a reasonable probability that, but for\\n\\ncounsel’s unprofessional errors, the result of the proceeding would have been\\n\\ndifferent. A reasonable probability is a probability sufficient to undermine\\n\\nconfidence in the outcome.” Id. at 694, 104 S. Ct. at 2068; see also Harrington v.\\n\\n\\n\\n 26\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 27 of 44\\n\\n\\nRichter, 562 U.S. 86, 112, 131 S. Ct. 770, 792 (2011) (“The likelihood of a\\n\\ndifferent result must be substantial, not just conceivable.”).\\n\\n As difficult as it is to prevail on an ineffective assistance prejudice issue in\\n\\nthe first court to decide it, the Antiterrorism and Effective Death Penalty Act of\\n\\n1996 makes it even harder to succeed on that issue in a federal habeas proceeding\\n\\nafter a state court has ruled that the petitioner failed to show prejudice. To obtain\\n\\nhabeas relief, the petitioner must show that the state court’s ruling “resulted in a\\n\\ndecision that was contrary to, or involved an unreasonable application of, clearly\\n\\nestablished Federal law, as determined by the Supreme Court of the United States.”\\n\\n28 U.S.C. § 2254(d)(1).5 That is a highly deferential standard that is intentionally\\n\\ndifficult to meet. See Harrington, 562 U.S. at 102, 131 S. Ct. at 786; Trepal v.\\n\\nSec’y, Fla. Dep’t of Corr., 684 F.3d 1088, 1107 (11th Cir. 2012); see also White v.\\n\\nWheeler, 577 U.S. __, 136 S. Ct. 456, 460 (2015) (“This Court, time and again, has\\n\\ninstructed that AEDPA, by setting forth necessary predicates before state-court\\n\\njudgments may be set aside, erects a formidable barrier to federal habeas relief for\\n\\nprisoners whose claims have been adjudicated in state court.”) (quotation marks\\n\\nomitted).\\n\\n\\n\\n 5\\n A petitioner may, of course, also prevail under AEDPA by showing that the state\\ncourt’s ruling “resulted in a decision that was based on an unreasonable determination of the\\nfacts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).\\nBecause Meders makes no argument under that alternative provision, we will not discuss it\\nfurther.\\n\\n\\n 27\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 28 of 44\\n\\n\\n Under AEDPA, error is not enough; even clear error is not enough. Virginia\\n\\nv. LeBlanc, 582 U.S. __, 137 S. Ct. 1726, 1728 (2017) (“In order for a state court’s\\n\\ndecision to be an unreasonable application of this Court’s case law, the ruling must\\n\\nbe objectively unreasonable, not merely wrong; even clear error will not suffice.”)\\n\\n(quotation marks omitted). To overcome AEDPA deference under § 2254(d)(1),\\n\\nthe petitioner must “show that the state court’s ruling . . . was so lacking in\\n\\njustification that there was an error well understood and comprehended in existing\\n\\nlaw beyond any possibility for fairminded disagreement.” Id. “[I]f some\\n\\nfairminded jurists could agree with the state court’s decision, although others\\n\\nmight disagree, federal habeas relief must be denied.” Holsey v. Warden, Ga.\\n\\nDiagnostic Prison, 694 F.3d 1230, 1257 (11th Cir. 2012) (quotation marks\\n\\nomitted).\\n\\n The Georgia Supreme Court denied Meders’ guilt stage ineffective\\n\\nassistance of counsel claim on the merits. See Meders, 411 S.E.2d at 492. It did\\n\\nso in the appeal from the order entered by the state trial court on remand during the\\n\\ndirect appeal. See id. Because it affirmed on the basis of the trial court’s order,\\n\\nsee id, we “look through” the Georgia Supreme Court’s decision to that trial court\\n\\norder. See Wilson v. Sellers, 584 U.S. __, 138 S. Ct. 1188, 1192 (2018).\\n\\n Meders concedes that § 2254(d)(1) deference is due the state trial court’s\\n\\nruling on remand regarding prejudice. See, e.g., Appellant’s Br. at 33 (“The issue\\n\\n\\n\\n 28\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 29 of 44\\n\\n\\nin this case, then, is whether the state court’s conclusion that Meders failed to\\n\\nprove sufficient prejudice involved an unreasonable application of Strickland, as\\n\\ndefined by § 2254(d)(1).”). The measure of deference is whether “the state court’s\\n\\nruling . . . was so lacking in justification that there was an error well understood\\n\\nand comprehended in existing law beyond any possibility for fairminded\\n\\ndisagreement.” LeBlanc, 137 S. Ct. at 1728 (citation omitted); Holsey, 694 F.3d at\\n\\n1257.\\n\\n “Deciding whether a state court’s decision involved an unreasonable\\n\\napplication of federal law . . . requires the federal habeas court to train its attention\\n\\non the particular reasons — both legal and factual — why state courts rejected a\\n\\nstate prisoner’s federal claims, and to give appropriate deference to that decision.”\\n\\nWilson, 138 S. Ct. at 1191–92 (quotation marks and citations omitted). That does\\n\\nnot mean we are to flyspeck the state court order or grade it. What it means is we\\n\\nare to focus not merely on the bottom line ruling of the decision but on the reasons,\\n\\nif any, given for it. The bottom line here is the ruling by the state trial court that\\n\\ncounsel’s failure to use certain pretrial statements of witnesses and police reports\\n\\ncoupled with their failure to object to certain evidence did not amount to\\n\\nineffective assistance of counsel. The reason the state court gave for that ruling is\\n\\nthat there was no reasonable probability of a different result if counsel had acted as\\n\\nMeders claimed they should have. The reason there wasn’t, the court explained, is\\n\\n\\n\\n 29\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 30 of 44\\n\\n\\nthat the evidence counsel failed to present was cumulative and outweighed by the\\n\\nstrong evidence of guilt, and the objections that they failed to make would have\\n\\nbeen futile or otherwise would have made no difference anyway. See Strickland,\\n\\n466 U.S. at 692–96, 104 S. Ct. at 2066–69.\\n\\n Notwithstanding his concession that deference is due, at other points in his\\n\\nbriefs Meders appears to implicitly argue either that deference is not due, or\\n\\nperhaps that deference does not mean much. He does so by engaging in a line-by-\\n\\nline critique of the state court’s reasoning, pointing out evidence that was not\\n\\nmentioned in the state court’s order or was not given the weight he feels it\\n\\ndeserves. See, e.g., Appellant’s Reply Br. at 7–8 (taking issue with how the state\\n\\ntrial court summarized the evidence against him); id. at 16 (arguing that the state\\n\\ntrial court’s order “gives no indication” that it considered facts brought to light by\\n\\nthe impeachment evidence presented at the remand hearing); Appellant’s Br. at 36\\n\\n(arguing that the court focused on the wrong evidence and “failed to consider the\\n\\nmost compelling issues framed by the evidence”). That is not the proper approach.\\n\\n This Court has stressed that in applying AEDPA deference federal courts are\\n\\nnot to take a magnifying glass to the state court opinion or grade the quality of it.\\n\\nWe have emphasized time and again that we are “not to read state court opinions as\\n\\nif we were grading papers.” Rimmer v. Sec’y, Fla. Dep’t of Corr., 876 F.3d 1039,\\n\\n1055 (11th Cir. 2017) (quotation marks omitted); see also, e.g., Jones v. Sec’y, Fla.\\n\\n\\n\\n 30\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 31 of 44\\n\\n\\nDep’t. of Corr., 834 F.3d 1299, 1311 (11th Cir. 2016) (“[W]e have cautioned that\\n\\noveremphasis on the language of a state court’s rationale would lead to a grading\\n\\npapers approach that is outmoded in the post-AEDPA era.”) (quotation marks\\n\\nomitted); Holland v. Florida, 775 F.3d 1294, 1311 (11th Cir. 2014) (“We do not\\n\\nread state court opinions as if we were grading papers, and must apply AEDPA\\n\\ndeference absent a conspicuous misapplication of Supreme Court precedent.”)\\n\\n(quotation marks omitted); cf. Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245,\\n\\n1255 (11th Cir. 2002) (“Reading into the statute a requirement that state courts\\n\\nspell out their rationale would run counter to the main thrust of [AEDPA].”).\\n\\n We have explicitly rejected the proposition that a state court decision\\n\\ninvolves an unreasonable application of federal law and is not entitled to deference\\n\\nunless that court’s opinion on its face “shows its work” by explicitly mentioning\\n\\n“all relevant circumstances” that the defendant argues in support of relief. See Lee\\n\\nv. Comm’r, Ala. Dep’t of Corr., 726 F.3d 1172, 1211 (11th Cir. 2013). That\\n\\nproposition captures Meders’ position. Our rejection of it follows the Supreme\\n\\nCourt’s teaching that “readiness to attribute error” to a state court decision is\\n\\nincompatible with both “the presumption that state courts know and follow the\\n\\nlaw” and AEDPA’s “highly deferential standard for evaluating state-court rulings,\\n\\nwhich demands that state-court decisions be given the benefit of the doubt.”\\n\\n\\n\\n\\n 31\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 32 of 44\\n\\n\\nWoodford v. Visciotti, 537 U.S. 19, 24, 123 S. Ct. 357, 360 (2002) (citation\\n\\nomitted) (internal quotation marks omitted).\\n\\n The Supreme Court in Wilson held that presumptively we should look\\n\\nthrough a silent higher state court decision to an explicitly reasoned lower court\\n\\none in determining the reasons for the decision. Wilson, 138 S. Ct. at 1193–96.\\n\\nBut Wilson was about which state court decision we are to look at if the lower state\\n\\ncourt gives reasons and the higher state court does not. It was not about the\\n\\nspecificity or thoroughness with which state courts must spell out their reasoning\\n\\nto be entitled to AEDPA deference or the level of scrutiny that we are to apply to\\n\\nthe reasons that they give. Our no-grading-papers, anti-flyspecking rule remains\\n\\nthe law of the circuit. See Main Drug, Inc. v. Aetna U.S. Healthcare, Inc., 475\\n\\nF.3d 1228, 1230 (11th Cir. 2007) (“Obedience to a Supreme Court decision is one\\n\\nthing, extrapolating from its implications a holding on an issue that was not before\\n\\nthat Court in order to upend settled circuit law is another thing.”); Garrett v. Univ.\\n\\nof Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1292 (11th Cir. 2003) (“While\\n\\nan intervening decision of the Supreme Court can overrule the decision of a prior\\n\\npanel of our court, the Supreme Court decision must be clearly on point.”).\\n\\n After all, the Supreme Court itself has also held that “federal courts have no\\n\\nauthority to impose mandatory opinion-writing standards on state courts.” Johnson\\n\\nv. Williams, 568 U.S. 289, 300, 133 S. Ct. 1088, 1095 (2013). In so holding, the\\n\\n\\n\\n 32\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 33 of 44\\n\\n\\nCourt cautioned that “[t]he caseloads shouldered by many state appellate courts are\\n\\nvery heavy, and the opinions issued by these courts must be read with that factor in\\n\\nmind.” Id. at 300, 133 S. Ct. at 1095–96 (footnote omitted). Not only that, but the\\n\\nSupreme Court has held that AEDPA deference is due even to those state court\\n\\nrulings for which no rationale or reasoning at all is given. See Harrington, 562\\n\\nU.S. at 100, 131 S. Ct. at 785. It would be irrational to afford deference to a\\n\\ndecision with no stated explanation but not afford deference to one that states\\n\\nreasons, albeit not as thoroughly as it could have.\\n\\n Only the clearest indication that Wilson overruled the Supreme Court’s\\n\\nprevious decisions, such as Johnson, would warrant ignoring those decisions, and\\n\\nthere is no indication at all that Wilson did so. See Hohn v. United States, 524\\n\\nU.S. 236, 252–53, 118 S. Ct. 1969, 1978 (1998) (“Our decisions remain binding\\n\\nprecedent until we see fit to reconsider them, regardless of whether subsequent\\n\\ncases have raised doubts about their continuing vitality.”); Agostini v. Felton, 521\\n\\nU.S. 203, 237, 117 S. Ct. 1997, 2017 (1997) (“We do not acknowledge, and we do\\n\\nnot hold, that other courts should conclude our more recent cases have, by\\n\\nimplication, overruled an earlier precedent.”); Rodriguez de Quijas v.\\n\\nShearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 1921–22 (1989)\\n\\n(“If a precedent of this Court has direct application in a case, yet appears to rest on\\n\\nreasons rejected in some other line of decisions, the Court of Appeals should\\n\\n\\n\\n 33\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 34 of 44\\n\\n\\nfollow the case which directly controls, leaving to this Court the prerogative of\\n\\noverruling its own decisions.”).\\n\\n Applying AEDPA deference to the state trial court decision that Meders\\n\\nfailed to establish prejudice for Strickland purposes, the question is whether every\\n\\nfairminded jurist would conclude that prejudice has been established. See\\n\\nWilliamson v. Fla. Dep’t of Corr., 805 F.3d 1009, 1016 (11th Cir. 2015) (“To\\n\\nestablish prejudice [where AEDPA applies, a petitioner] has to show that every\\n\\nfair-minded jurist would conclude that there is a reasonable probability that, but for\\n\\ncounsel’s unprofessional errors, the result of the proceeding would have been\\n\\ndifferent.”) (quotation marks omitted). So long as any fairminded jurist could\\n\\nagree with the state court’s ruling, we must deny federal habeas relief. With that\\n\\nstandard of deference in mind, we turn to the facts established at trial and in the\\n\\nevidentiary hearing in the state trial court on remand that are relevant to the\\n\\nineffective assistance of counsel claims.\\n\\n A. Failure to Use the Pretrial Statements and the Police Reports\\n\\n Meders contends that his trial counsel was ineffective for failing to use\\n\\ncertain pretrial statements and police reports to impeach several of the State’s\\n\\nwitnesses, and that the state trial court’s determination that he had failed to\\n\\nestablish prejudice “reflects a profound misvaluation of the impeachment material\\n\\ntrial counsel failed to use.” The State, while acknowledging that new evidence\\n\\n\\n\\n 34\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 35 of 44\\n\\n\\ndoes call into question “certain areas of credibility” of some of its witnesses,\\n\\ncontends that evidence is not enough to repair Meders’ credibility or to refute the\\n\\noverwhelming evidence showing his guilt.\\n\\n As the State recognizes, when read against their testimony at trial, the\\n\\npretrial statements and the police reports weaken the credibility of Harris, Creel,\\n\\nArnold, and Detective Boyet. Harris, for example, first told the police around\\n\\n11:00 a.m. on October 14 that he hadn’t seen Meders since the previous night. An\\n\\nhour later he told the police that between 3:00 to 4:00 that morning Meders had\\n\\nstopped by his motel room and told him he shot the store clerk, but said that\\n\\nMeders had not mentioned that he shot the clerk in the head. But Harris later\\n\\ntestified at trial that when Meders had stopped by his motel room, Meders told him\\n\\nhe had shot the store clerk in the head. He also first told the police he didn’t know\\n\\nwhere the murder weapon was located, then told them two days later that he had\\n\\nremembered Meders liked to hide things under his waterbed “where they would\\n\\nnever be found,” and finally testified at trial that Sherry Meders had told him that\\n\\nthe gun was under the waterbed.\\n\\n Although it’s clear that Harris made inconsistent statements, it’s not clear\\n\\nthat he was lying about Meders confessing that he had just “blowed a man’s head\\n\\noff over $38.00.” Harris testified that Meders took $38 — no more, no less —\\n\\nfrom the Jiffy Store. But there is no evidence that Arnold or Creel knew how\\n\\n\\n\\n 35\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 36 of 44\\n\\n\\nmuch money was taken from the Jiffy Store. And Meders admitted at trial that he\\n\\nhad taken the money from the cash register and that nothing was said in the car\\n\\nfrom “the time we left the store till we reached Shady Acres Trailer Park.” So\\n\\nArnold and Creel could not have told Harris how much money Meders took\\n\\nbecause they did not know how much money he took. As a result, either Meders\\n\\ntold Harris that he took $38 from the store (and lied to Boyet when denying that) or\\n\\nHarris miraculously guessed the precise amount of cash that Meders stole from the\\n\\nstore.\\n\\n In a similar vein, Harris’ incentive to lie about who committed the robbery-\\n\\nmurder was much weaker than that of Meders, Arnold, or Creel. Arnold and Creel\\n\\nadmitted that they were present at the scene of the murder, putting them in some\\n\\njeopardy of being convicted of that crime. Harris, by contrast, undisputedly was\\n\\nnot present during the crime, nor was there any evidence suggesting that he knew it\\n\\nwas going to happen. No matter whose version of the events the jury found was\\n\\ntrue, Harris did not face conviction for the capital crime of robbery-murder and a\\n\\ndeath sentence. And a rational jury in deciding whether to believe him or Meders\\n\\nwould take into account that he had far less incentive to lie than Meders, who was\\n\\nfacing a death sentence, did.\\n\\n Still, Harris could have been impeached with the evidence Meders’ trial\\n\\ncounsel did not present. And Arnold, Creel, and Detective Boyet also could have\\n\\n\\n\\n 36\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 37 of 44\\n\\n\\nbeen impeached with the evidence that was not presented. Arnold’s and Creel’s\\n\\npretrial statements contradicted some of their testimony at trial. The police reports\\n\\nfrom the prosecutor’s file not only undermined the testimonies of Arnold, Creel,\\n\\nand Boyet about the truck shootings but also supported Meders’ testimony about\\n\\nthose shootings. And the jury’s question about whether any reports were filed\\n\\nabout the truck shootings suggests that it was interested in that subject. The jury\\n\\nquestions about whether the waterbed was searched when officers first searched\\n\\nthe house and whether fingerprints were lifted from it suggest that the jury was\\n\\nalso interested in that.\\n\\n Despite all of that, there was still undisputed evidence in the record pointing\\n\\nto Meders’ guilt. For example, the two bullets that struck the victim were fired\\n\\nfrom the Dan Wesson .357 Magnum revolver that was found under Meders’\\n\\nwaterbed. Meders even confirmed at trial that the .357 Magnum “was the weapon\\n\\nthat was used to kill the [store clerk].” He acknowledged that he owned that\\n\\nweapon, and there was no evidence that anyone had planted it under his waterbed.\\n\\n The undisputed facts about what happened to the proceeds of the robbery are\\n\\nstrong evidence of Meders’ guilt. After all, he admitted to the jury that he was the\\n\\none who took the money from the Jiffy Store: “I got the money out of the cash\\n\\nregister.” And he was the only one who kept any of that money. The Jiffy Store’s\\n\\nbait money was found in his possession. Meders admitted that two of the three bait\\n\\n\\n\\n 37\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 38 of 44\\n\\n\\nmoney bills were found in his wallet. The third bait bill was found on his\\n\\ntelevision. If, as Meders claimed in his testimony, Arnold actually shot the store\\n\\nclerk during the robbery, it seems highly unlikely that Arnold would not have\\n\\nended up with any of the stolen money. Meders testified that after the crime, he\\n\\ninsisted that Arnold keep the firearm that belonged to Meders because he “didn’t\\n\\nwant it back,” but he never explained why he didn’t insist that Arnold take the\\n\\ncash, which was the proceeds of the crime.\\n\\n That the murder weapon was found under Meders’ waterbed evidences his\\n\\nguilt. And even if we assume that it was put there by someone other than Meders,\\n\\nas he implied at trial, the fact remains that he admitted to owning the weapon that\\n\\nfired the bullets that killed Anderson. He admitted to being present at the scene of\\n\\nthe crime. And he admitted to having in his possession all of the money taken\\n\\nfrom the cash register. And although the evidence that trial counsel did not present\\n\\nwould have been helpful in impeachment, none of it substantially undermined the\\n\\nproof of Meders’ guilt. Whether Arnold and Creel shot at the trucks and whether\\n\\nthey dropped Meders off at his house at some point before the murder does not\\n\\nchange the undisputed facts that point to Meders’ guilt. The evidence establishing\\n\\nthat Meders committed the murder remains strong.\\n\\n Even though the police reports corroborated some of Meders’ testimony, the\\n\\nreports would not have repaired his credibility. Meders lied to the police several\\n\\n\\n\\n 38\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 39 of 44\\n\\n\\ndifferent times, and he acknowledged as much at trial. He testified that he told the\\n\\nofficer who pulled up at his house after the shooting that he had just gone to call\\n\\nhis girlfriend and he was nervous because his wife would kill him if she found out.\\n\\nThat was a lie, as Meders admitted at trial. And when police officers questioned\\n\\nhim at his house hours after the murder, he told them he did not know anything\\n\\nabout the shooting. That was also a lie, as Meders admitted at trial. Hours later at\\n\\nthe police station, he again told Detective Boyet he knew nothing about the\\n\\nshooting. Same lie retold, as Meders later admitted at trial.\\n\\n A year and a month after his arrest Meders reversed a year-long course of\\n\\nlies and admitted to Boyet that he was with Arnold and Creel at the Jiffy Store at\\n\\nthe time of the murder. He attempted to explain away his previous lies about that\\n\\nby saying he had simply been following Harris’ advice to deny any involvement in\\n\\nthe crime.6 He was the only one out of the three men involved in the crime who\\n\\ninitially denied having any knowledge of it to persist in that lie for more than a\\n\\nyear. Meders also lied to the police about the murder weapon. When asked at the\\n\\n\\n 6\\n That Meders would follow Harris’ advice is hard to square with his purported belief that\\nHarris was out to get him for allegedly having an affair with Harris’ wife.\\n Meders argues that in a contest of credibility a jury should not believe Harris’ testimony\\nincriminating him because Harris initially failed to mention to the police anything about Meders’\\ninvolvement in the murder but an hour later told them that Meders said he had “killed a man over\\n$38.” If Harris’ “lie,” which he corrected within an hour, supplies “good reason to doubt” his\\ntestimony, Meders’ lies about having no knowledge of the crime, which he failed to correct for\\n13 months, give bountiful reason to doubt Meders’ testimony and decide the contest of\\ncredibility in favor of Harris.\\n\\n\\n 39\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 40 of 44\\n\\n\\npolice station the day of the robbery and murder what firearms he owned, he listed\\n\\nseveral guns, failing to mention only one –– his Dan Wesson .357 Magnum that\\n\\nwas the murder weapon.\\n\\n Meders has failed to show that had his trial counsel used all of the\\n\\nimpeachment material during the guilt phase of his trial, every fairminded jurist\\n\\nwould conclude that there is a “substantial, not just conceivable,” likelihood that\\n\\nthe result of his trial would have been different. See Harrington, 562 U.S. at 112,\\n\\n131 S. Ct. at 792. We are not convinced that every reasonable jurist’s confidence\\n\\nin the outcome of the trial would have been undermined. See Strickland, 466 U.S.\\n\\nat 687, 104 S. Ct. at 2064. The state trial court’s prejudice determination was not\\n\\nunreasonable.\\n\\n B. Failure to Object to the Food Stamps and the Cocaine Citation\\n\\n Meders also argues that trial counsel’s failure to object to the introduction of\\n\\nevidence that he had food stamps or to argue to the jury that they could not be\\n\\nlinked to the robbery also amounted to ineffective assistance. The Jiffy Store\\n\\nmanager testified that food stamps were taken from the store, although she could\\n\\nnot say how many food stamps were taken. And on the witness stand, Meders\\n\\nconceded that food stamps were found in his jacket just hours after the crime. In\\n\\naddition, Creel testified that after they got to the trailer park minutes after the\\n\\n\\n\\n\\n 40\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 41 of 44\\n\\n\\nshooting, Meders tried to give him and Arnold some of the food stamps that he had\\n\\ntaken from the store.\\n\\n Given all of that testimony, there was enough evidence to link the food\\n\\nstamps to the robbery. They were admissible and an objection to them would have\\n\\nbeen futile. The state court found that counsel’s failure to object to the\\n\\nintroduction of the food stamps was neither deficient performance nor prejudicial.\\n\\nThat is not only reasonable but also correct. It is not ineffective assistance of\\n\\ncounsel to fail to make an objection that is not due to be sustained. See Green v.\\n\\nGeorgia, 882 F.3d 978, 987 (11th Cir. 2018) (holding that the petitioner could not\\n\\npossibly have suffered Strickland prejudice where the objection that was not made\\n\\nwould have been futile); Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1297 (11th Cir.\\n\\n2017) (stating that “an attorney will not be held to have performed deficiently for\\n\\nfailing to perform a futile act, one that would not have gotten his client any relief”).\\n\\n As for counsel’s failure to argue to the jury that the food stamps found in\\n\\nMeders’ possession had not been positively connected to the robbery, it is not\\n\\nprejudicial for an attorney to fail to point out to the jury something that is obvious\\n\\nfrom the evidence. No one said that those food stamps could be traced to the store\\n\\nthat had been robbed. Reasonable jurists could find, as the state court did, that\\n\\nMeders has failed to show that if counsel had objected to the food stamps or argued\\n\\nthat they had not been identified as the ones taken in the robbery, Meders would\\n\\n\\n\\n 41\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 42 of 44\\n\\n\\nhave been acquitted. Cf. Mansfield v. Sec’y, Dep’t of Corr., 679 F.3d 1301, 1311–\\n\\n12 (11th Cir. 2012) (holding that the district court should have deferred to the state\\n\\ncourt’s finding that “credited the testimony indicating that the food stamps found\\n\\nin [the defendant’s] room belonged to [the victim]” despite the fact that “the\\n\\nevidence did not establish with certainty that the food stamps found in [the\\n\\ndefendant’s] room belonged to [the victim]”).\\n\\n The state court rejected Meders’ ineffective assistance of counsel claim\\n\\ninvolving the failure to object to the admission of the cocaine citation seized from\\n\\nhis wallet on the ground that he had failed to establish prejudice. Although that\\n\\ncitation was admitted as evidence and given to the jury (along with other\\n\\ndocumentary evidence), it was never mentioned during the trial. Not once. Not\\n\\nonly that, but other evidence established that Meders had used and purchased\\n\\ndrugs. He admitted to the jury that he “smoked a little bit of dope” (marijuana)\\n\\nduring the afternoon of October 13, 1987. He also told the jury that he “had been\\n\\neating, or, well, what you call eating, had been taking some of them Valiums that\\n\\nday, earlier that day.” They were 10 milligram Valiums, he said, helpfully\\n\\ninforming everyone from the witness stand that a 10 milligram Valium “is actually\\n\\nthe biggest Valium you can get.” Meders also testified that he purchased drugs,\\n\\nexplaining that “any time I bought dope, I bought it from [Harris].” Meders’ own\\n\\n\\n\\n\\n 42\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 43 of 44\\n\\n\\nadmissions that he used drugs were backed up by the testimony of other witnesses\\n\\nthat he did.\\n\\n Based on the other evidence presented, the jury could reasonably conclude\\n\\nthat Meders’ drug use was the cause of the debt he allegedly owed. And even if\\n\\nhis drug use was not the cause of it, his debt was not “a critical fact for the\\n\\ndetermination of guilt,” anyway, as the district court noted. All of this means that\\n\\na fairminded jurist could agree with the state trial court’s ruling that Meders failed\\n\\nto show Strickland prejudice from counsel’s failure to object to the admission of\\n\\nthe cocaine citation. Even considering any purported cumulative effect from the\\n\\nadmission of the food stamps and cocaine citation and trial counsel’s failure to\\n\\npresent the impeachment evidence, a fairminded jurist could still conclude that it\\n\\nwas insufficient to undermine his confidence in Meders’ trial. See Reed v. Sec’y,\\n\\nFla. Dep’t of Corr., 767 F.3d 1252, 1263–64 (11th Cir. 2014).\\n\\n III. CONCLUSION\\n\\n Because our review is deferential, we need not determine whether our\\n\\ndecision would be the same if we were conducting a de novo review, though we\\n\\nrecognize that a different standard of review would make the questions in this case\\n\\ncloser ones. Looking through the AEDPA lens, we conclude that a fairminded\\n\\njurist could agree with the state trial court’s decision. Or put another way, not\\n\\nevery reasonable jurist would conclude that the state trial court’s decision was\\n\\n\\n\\n 43\\n\\f Case: 14-14178 Date Filed: 01/04/2019 Page: 44 of 44\\n\\n\\ncontrary to or an unreasonable application of Supreme Court precedent. And for\\n\\nthat reason, the district court did not err in denying Meders’ petition for a writ of\\n\\nhabeas corpus.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 44\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":394,"cells":{"id":{"kind":"number","value":4579003,"string":"4,579,003"},"name":{"kind":"string","value":"AARON PRIVATE CLINIC MANAGEMENT LLC, Plaintiff-Appellant, v. Frank W. BERRY, in His Official Capacity as Commissioner of the Georgia Department of Community Health, and Nathan Deal, in His Official Capacity as Governor of Georgia, Defendants-Appellees."},"name_abbreviation":{"kind":"string","value":"Aaron Private Clinic Management LLC v. Commissioner of the Georgia Department of Community Health"},"decision_date":{"kind":"string","value":"2019-01-04"},"docket_number":{"kind":"string","value":"17-15144"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Tjoflat, Pryor, Gilman\", \"parties\": \"\", \"opinions\": [{\"author\": \"WILLIAM PRYOR, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-15144 Date Filed: 01/04/2019 Page: 1 of 18\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-15144\\n ________________________\\n\\n D.C. Docket No. 1:17-cv-01034-WSD\\n\\n\\n\\nAARON PRIVATE CLINIC MANAGEMENT LLC,\\n\\n Plaintiff-Appellant,\\n versus\\n\\nFRANK W. BERRY, in his official capacity as Commissioner of the Georgia\\nDepartment of Community Health, and\\nNATHAN DEAL, in his official capacity as Governor of Georgia,\\n\\n Defendants-Appellees.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Northern District of Georgia\\n _______________________\\n\\n (January 4, 2019)\\n\\nBefore TJOFLAT, WILLIAM PRYOR, and GILMAN, * Circuit Judges.\\n\\nWILLIAM PRYOR, Circuit Judge:\\n\\n\\n\\n* Honorable Ronald L. Gilman, United States Circuit Judge for the Sixth Circuit, sitting by\\ndesignation.\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 2 of 18\\n\\n\\n This appeal requires us to decide whether a limited liability company that\\n\\nmade preliminary plans to operate a methadone clinic has standing to challenge\\n\\nstate laws that restrict the licensure of narcotic-treatment facilities. Aaron Private\\n\\nClinic Management sued certain Georgia officials after two Georgia laws\\n\\ntemporarily suspended the issuance of new licenses for narcotic-treatment facilities\\n\\nand imposed additional licensing requirements for future facilities. The district\\n\\ncourt dismissed the action for lack of standing. Because the challenge to the\\n\\nmoratorium is in part moot and because we agree with the district court that Aaron\\n\\nlacks standing to assert its other claims, we affirm.\\n\\n I. BACKGROUND\\n\\n Aaron Private Clinic Management is a for-profit company that asserts that it\\n\\n“intends to meet the standards to establish an [opioid-treatment program] in\\n\\nGeorgia.” Frank Berry is the commissioner for the Georgia Department of\\n\\nCommunity Health and, in that capacity, oversees the agency that issues licenses\\n\\nfor narcotic-treatment facilities in Georgia. Nathan Deal is the governor of\\n\\nGeorgia, and he has the ultimate authority to direct and control the operations of\\n\\nthe Georgia Department of Community Health.\\n\\n In May 2017, Aaron filed a complaint alleging that two Georgia statutes\\n\\nviolate section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and Title II of the\\n\\nAmericans with Disabilities Act, 42 U.S.C. § 12132. First, Aaron challenges a\\n\\n\\n\\n 2\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 3 of 18\\n\\n\\n2016 statute, which it calls the “Licensing Moratorium,” that enacted “[a]\\n\\ntemporary moratorium on the acceptance of new applications for licensure of\\n\\nnarcotic treatment programs,” O.C.G.A. § 26-5-21(e). The Licensing Moratorium\\n\\nprohibited new applications from being accepted between June 1, 2016, and June\\n\\n30, 2017. Id. § 26-5-21(f). Second, Aaron challenges a 2017 statute, which it calls\\n\\nthe “License Cap,” that supersedes the Licensing Moratorium and provides that\\n\\nGeorgia’s Department of Community Health must establish minimum standards of\\n\\nquality for narcotic-treatment programs and provides for annual or biannual open-\\n\\nenrollment periods for program applications, see id. § 26-5-40 et seq. The License\\n\\nCap also extended the prohibition on accepting new licensure applications from\\n\\nJune 30, 2017, to December 1, 2017. Id. § 26-5-46(d).\\n\\n Aaron contends that the Licensing Moratorium and License Cap block it\\n\\nfrom establishing an opioid-treatment program and impose “arbitrary restrictions\\n\\nand burdens” on methadone clinics. Aaron asserts that it sues on its own behalf and\\n\\n“on behalf of its prospective patients who are opiate-addicted, who are qualified\\n\\ndisabled under the [Americans with Disabilities Act], and who are prospective\\n\\npatients of [Aaron].” Counts one through four of the complaint assert that the\\n\\nLicensing Moratorium and the License Cap are facially invalid under the\\n\\nRehabilitation Act and the Americans with Disabilities Act. Counts five and six\\n\\nassert an equal-protection challenge to the statutes, contending that “the State of\\n\\n\\n\\n 3\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 4 of 18\\n\\n\\nGeorgia’s actions and disparate treatment . . . cause disproportionate impact to\\n\\n[Aaron] and the disabled persons [Aaron] intends to serve.” Aaron requests an\\n\\naward of compensatory damages and litigation expenses, a permanent injunction\\n\\nenjoining the defendants from continuing to violate the Americans with\\n\\nDisabilities Act and the Rehabilitation Act by “denying or delaying [Aaron’s]\\n\\nability to locate an [opioid-treatment program]” in Georgia, and a declaration that\\n\\nthe challenged statutes are void and unenforceable.\\n\\n In its complaint, Aaron alleges few facts about its plan to establish a\\n\\nmethadone clinic. Aaron first alleges that it is a Georgia limited liability company\\n\\nwith a principal place of business at 4403 Northside Parkway NW, Suite 1413,\\n\\nAtlanta, Georgia 30327. This address is the same as that of the law office of\\n\\nAaron’s counsel, James A. Dunlap. Aaron also alleges that it will use the “latest\\n\\nmedical technologies, including methadone maintenance treatment, to address the\\n\\nphysical symptoms of [opioid] addiction in combination with . . .\\n\\npsychotherapeutic interventions.” Aaron further alleges that its prospective opiate-\\n\\naddicted clients are disabled under the Rehabilitation Act and the Americans with\\n\\nDisabilities Act, and that Aaron’s programs will operate as “supervised\\n\\nrehabilitation programs” for persons with disabilities as described under federal\\n\\nlaw. And Aaron alleges in each count of the complaint that the challenged statutes\\n\\nhave caused it to expend additional time and financial resources, to lose the\\n\\n\\n\\n 4\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 5 of 18\\n\\n\\nopportunity to conduct its business, and to incur “additional costs and expenses,\\n\\nattorney’s fees, interest, and cost of capital” from “interference and delays with\\n\\nplanning, raising investment funds, hiring, and other normal processes related to\\n\\nopening a business.” These allegations are all the complaint contains about\\n\\nAaron’s plan to establish a methadone clinic.\\n\\n Although Aaron offers few specifics about its proposed clinic, its complaint\\n\\nincludes more detailed allegations about the need for methadone clinics in Georgia.\\n\\nAaron alleges that the annual number of opioid overdose deaths in Georgia is\\n\\nskyrocketing, rising from roughly 200 in 2006 to nearly 1,000 in 2015. Aaron\\n\\nfurther asserts that many of Georgia’s methadone clinics are currently overcapacity\\n\\nand cannot accept new patients. Aaron also contends that the lack of capacity\\n\\ncauses a variety of harms to opioid-addicted persons, who face price gouging,\\n\\nlonger travel and wait times, and a lack of competition for treatment options. And\\n\\nAaron cites evidence suggesting that methadone treatment has proven to be\\n\\neffective in reducing the number of drug overdoses in a community.\\n\\n After Aaron filed its complaint, the defendants moved to dismiss on several\\n\\ngrounds, including for lack of standing. The district court granted the motion to\\n\\ndismiss. The court first determined that the complaint fails to establish that Aaron\\n\\ndirectly suffered an injury in fact that is “actual or imminent, not ‘conjectural’ or\\n\\n‘hypothetical.’” The court explained that the complaint alleges at most that Aaron\\n\\n\\n\\n 5\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 6 of 18\\n\\n\\nwas in the early stages of the planning process, not that it would have been\\n\\nprepared to offer treatment to its prospective clients but for the challenged statutes.\\n\\nThe court also stated that, although Aaron labels the requirements imposed by the\\n\\nLicense Cap as “arbitrary and discriminatory,” it fails to identify any “specific\\n\\nrules with which it cannot comply, and does not allege why they are discriminatory\\n\\nor how they prevent [it] from establishing its clinic in the future.” And the court\\n\\nobserved that Aaron has not alleged that it had applied for a license and been\\n\\ndenied, that it would be prevented from participating in the open enrollment for\\n\\nnew licensure applications, or that it would be unsuccessful in such applications if\\n\\nthey were submitted. The district court also rejected Aaron’s contention that it had\\n\\nthird-party standing to assert the injuries suffered by its prospective clients. The\\n\\ndistrict court ruled that Aaron’s third-party-standing argument failed because\\n\\nAaron did not establish that it has suffered an injury in fact, that it has a close\\n\\nrelationship to a third party that is being discriminated against, and that there is\\n\\nsome hindrance to the third party’s ability to protect his or her own interests. See\\n\\nYoung Apartments v. Town of Jupiter, 529 F.3d 1027, 1042 (11th Cir. 2008).\\n\\nFinally, the district court ruled that, even if Aaron had sufficiently alleged direct or\\n\\nthird-party standing, it lacks statutory standing to assert these claims under either\\n\\nthe Rehabilitation Act or the Americans with Disabilities Act.\\n\\n\\n\\n\\n 6\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 7 of 18\\n\\n\\n II. STANDARD OF REVIEW\\n\\n We review the dismissal of a complaint de novo. Culverhouse v. Paulson &\\n\\nCo., 813 F.3d 991, 993 (11th Cir. 2016).\\n\\n III. DISCUSSION\\n\\n We divide our discussion in three parts. First, we explain that Aaron’s\\n\\nrequest for declaratory and injunctive relief regarding the temporary moratorium\\n\\non the acceptance of new licensure applications is moot. Second, we explain that\\n\\nAaron has failed to establish that it has direct standing. Third, we explain that\\n\\nAaron has failed to establish that it has third-party standing to assert the injuries of\\n\\nits prospective clients.\\n\\n A. Aaron’s Request for Declaratory and Injunctive Relief Regarding the\\n Temporary Moratorium is Moot.\\n\\n Although the district court did not consider and the parties have not briefed\\n\\nthe issue of mootness, “[i]t is incumbent upon this court to consider issues of\\n\\nmootness sua sponte and, absent an applicable exception to the mootness doctrine,\\n\\nto dismiss any appeal that no longer presents a viable case or controversy.” Hunt v.\\n\\nAimco Props., 814 F.3d 1213, 1220 (11th Cir. 2016) (quoting Pac. Ins. Co. v. Gen.\\n\\nDev. Corp., 28 F.3d 1093, 1096 (11th Cir. 1994)). “A case is moot when it no\\n\\nlonger presents a live controversy with respect to which the court can give\\n\\nmeaningful relief.” Id. (quoting Ethredge v. Hail, 996 F.2d 1173, 1175 (11th Cir.\\n\\n1993)). Absent exceptional circumstances, a challenge to the enforcement of a\\n\\n\\n 7\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 8 of 18\\n\\n\\nstatute becomes moot when that law is no longer effective. See Burke v. Barnes,\\n\\n479 U.S. 361, 363 (1987) (explaining that challenges to an expired statute, like\\n\\nthose made to a repealed statute, are moot). And although the district court did not\\n\\nrely on mootness in dismissing the complaint, “[w]e may affirm on any ground\\n\\nsupported by the record, regardless of whether that ground was relied upon or even\\n\\nconsidered below.” Waldman v. Conway, 871 F.3d 1283, 1289 (11th Cir. 2017).\\n\\n As Aaron acknowledged at oral argument, its request for declaratory and\\n\\ninjunctive relief about the Licensing Moratorium was rendered moot by the\\n\\nexpiration of the moratorium in June 2017, and its similar request about the\\n\\nLicense Cap’s extension of the moratorium was rendered moot when that provision\\n\\nexpired in December 2017. Because no exception to the mootness doctrine applies\\n\\nto these requests for declaratory and injunctive relief, they are moot, and we affirm\\n\\nthe dismissal of them.\\n\\n B. Aaron Has Failed to Establish that It Has Article III Standing.\\n\\n The district court ruled, and we agree, that Aaron lacks direct standing\\n\\nbecause it failed to plead facts establishing that it had directly suffered an actual or\\n\\nimminent injury in fact. Article III of the Constitution limits the subject-matter\\n\\njurisdiction of federal courts to “Cases” and “Controversies.” U.S. Const. Art. III,\\n\\n§ 2. Standing “is the threshold question in every federal case, determining the\\n\\npower of the court to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498 (1975).\\n\\n\\n\\n 8\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 9 of 18\\n\\n\\n“In the absence of standing, a court is not free to opine in an advisory capacity\\n\\nabout the merits of a plaintiff’s claims, and the court is powerless to continue.”\\n\\nCAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1269 (11th Cir.\\n\\n2006) (citations and internal quotation marks omitted).\\n\\n To establish its Article III standing, Aaron must satisfy three requirements.\\n\\nFirst, it “must have suffered an injury in fact—an invasion of a legally protected\\n\\ninterest which is (a) concrete and particularized and (b) actual or imminent, not\\n\\nconjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560\\n\\n(1992) (citations and internal quotation marks omitted). Second, “there must be a\\n\\ncausal connection between the injury and the conduct complained of—the injury\\n\\nhas to be fairly traceable to the challenged action of the defendant.” Id. (alterations\\n\\nadopted) (internal quotation marks omitted). Third, “it must be likely, as opposed\\n\\nto merely speculative, that the injury will be redressed by a favorable decision.” Id.\\n\\nat 561 (internal quotation marks omitted).\\n\\n Each element of standing is “an indispensable part of the plaintiff’s case”\\n\\nand “must be supported in the same way as any other matter on which the plaintiff\\n\\nbears the burden of proof, i.e., with the manner and degree of evidence required at\\n\\nthe successive stages of the litigation.” Id. “While the proof required to establish\\n\\nstanding increases as the suit proceeds, the standing inquiry remains focused on\\n\\nwhether the party invoking jurisdiction had the requisite stake in the outcome when\\n\\n\\n\\n 9\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 10 of 18\\n\\n\\nthe suit was filed.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008)\\n\\n(citation omitted).\\n\\n To satisfy its burden at the pleading stage, a plaintiff must “clearly allege\\n\\nfacts demonstrating each element,” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547\\n\\n(2016) (alteration adopted) (citation and internal quotation marks omitted), and we\\n\\nevaluate standing on a motion to dismiss based on the facts alleged in the\\n\\ncomplaint, Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1335 (11th Cir.\\n\\n2013). To adequately allege injury in fact, it is not enough that a complaint “‘sets\\n\\nforth facts from which we could imagine an injury sufficient to satisfy Article III’s\\n\\nstanding requirements,’ since ‘we should not speculate concerning the existence\\n\\nof standing, nor should we imagine or piece together an injury sufficient to give\\n\\nplaintiff standing when it has demonstrated none.’” Bochese v. Town of Ponce\\n\\nInlet, 405 F.3d 964, 976 (11th Cir. 2005) (quoting Miccosukee Tribe of Indians v.\\n\\nFla. State Athletic Comm’n, 226 F.3d 1226, 1229–30 (11th Cir. 2000)). “If the\\n\\nplaintiff fails to meet its burden, this court lacks the power to create jurisdiction by\\n\\nembellishing a deficient allegation of injury.” Id.\\n\\n Aaron contends that it suffered three injuries sufficient to establish its\\n\\nstanding under Article III. First, Aaron asserts that the Licensing Moratorium and\\n\\nLicense Cap precluded or hindered it from developing an opioid-treatment\\n\\nprogram in Georgia and caused it to suffer lost profits. Second, Aaron alleges that\\n\\n\\n\\n 10\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 11 of 18\\n\\n\\nthe challenged statutes caused it to incur “additional costs and expenses, attorney’s\\n\\nfees, interest, and cost of capital” from “interference and delays with planning,\\n\\nraising investment funds, hiring, and other normal processes related to opening a\\n\\nbusiness.” Third, Aaron alleges that the challenged statutes discriminate against\\n\\nand stigmatize it. We address each proffered injury in turn and determine that\\n\\nAaron has failed to establish its Article III standing.\\n\\n 1. Aaron’s Alleged Injury Based on Lost Profits Is Insufficient to Establish\\n Standing.\\n\\n We begin with Aaron’s assertion that the challenged statutes thwarted its\\n\\nplan to open a methadone clinic and caused it to suffer lost profits. The district\\n\\ncourt concluded that this alleged injury was speculative. We agree with the district\\n\\ncourt.\\n\\n Although the complaint alleges that Aaron aspired to open a methadone\\n\\nclinic someday, it offers no facts suggesting that the “someday” was imminent or\\n\\nthat Aaron had any concrete plan in place for bringing its clinic into operation. The\\n\\nmost that the complaint alleges Aaron has done is form a limited liability company\\n\\nthat will serve as a management company for future methadone clinics, and it\\n\\nvaguely alleges “interference and delays with planning, raising investment funds,\\n\\nhiring, and other normal processes related to opening a business.” But these\\n\\nallegations are a far cry from alleging that, absent the challenged statutes, Aaron\\n\\nimmediately intended to bring, and actually could bring, its clinic into operation.\\n\\n\\n 11\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 12 of 18\\n\\n\\nAnd Aaron has failed to allege that it has taken any concrete steps—such as\\n\\nselecting a clinic location, securing a lease option, consulting with relevant\\n\\ngovernment officials, applying for the necessary permits or certifications, or\\n\\nassociating with potential clients—that suggest such an immediate intention or\\n\\nplan. Because Aaron has alleged only that it intends to found a clinic at some\\n\\nunspecified time in the future, its “‘some day’ intention[]—without any description\\n\\nof concrete plans, or indeed even any specification of when the some day will be—\\n\\ndo[es] not support a finding of . . . ‘actual or imminent’ injury.” Lujan, 504 U.S. at\\n\\n564.\\n\\n Ample precedent makes clear that Aaron must allege more than a bare\\n\\nintention to someday found a clinic. In Village of Arlington Heights v.\\n\\nMetropolitan Housing Development Corp., 429 U.S. 252 (1977), and Jackson v.\\n\\nOkaloosa County, 21 F.3d 1531 (11th Cir. 1994), the Supreme Court and this\\n\\nCourt held that plaintiffs alleging injuries related to proposed housing projects had\\n\\nto establish, among other things, a “substantial probability” that the projects would\\n\\ncome into existence absent the challenged action. See Arlington Heights, 429 U.S.\\n\\nat 264; Jackson, 21 F.3d at 1537–38. The plaintiffs in both decisions—unlike\\n\\nAaron—met this burden by pointing to specific and concrete facts that suggested\\n\\nsuch a substantial probability. See Arlington Heights, 429 U.S. at 255–58\\n\\n(observing that the developer of a proposed housing project was already in the\\n\\n\\n\\n 12\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 13 of 18\\n\\n\\nbusiness of building similar housing projects, had entered into a 99-year lease and\\n\\nan accompanying agreement to purchase the land for the proposed project, had\\n\\nhired an architect and produced detailed plans for the project, and had submitted a\\n\\nvariety of detailed plans and reports as a part of a petition for rezoning); Jackson,\\n\\n21 F.3d at 1537–38 (observing that the bidding process for the proposed housing\\n\\nproject was nearly completed, the project’s sources of funding were established,\\n\\nand a bidder had submitted a bid to construct the facility at a specific proposed\\n\\nsite). And, in other factual contexts, the Supreme Court has repeatedly explained\\n\\nthat a plaintiff asserting that it would have engaged in an activity absent the\\n\\nchallenged statute must establish that it was “able and ready” to do so. See, e.g.,\\n\\nGratz v. Bollinger, 539 U.S. 244, 262 (2003) (explaining that the plaintiff had\\n\\nstanding to challenge affirmative-action policies at the defendant university\\n\\nbecause he established that he was “able and ready” to apply once the university\\n\\nstopped using race in admissions); Ne. Fla. Chapter, Associated Gen. Contractors\\n\\nof Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993) (holding that the plaintiffs\\n\\nhad standing to challenge an ordinance giving preferential treatment to minority-\\n\\nowned businesses because they “demonstrate[d] that [they were] able and ready to\\n\\nbid on contracts” (emphasis added)); Clements v. Fashing, 457 U.S. 957, 962\\n\\n(1982) (holding that plaintiff officeholders had standing because they credibly\\n\\nalleged that they would have announced their candidacy for other offices but for\\n\\n\\n\\n 13\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 14 of 18\\n\\n\\nthe “automatic resignation” provision they were challenging). It is not enough for\\n\\nAaron to allege that there exists a need for methadone clinics in Georgia in the\\n\\nabsence of facts that would suggest its readiness to supply that need.\\n\\n A plaintiff alleging that it would have opened a business absent the\\n\\nchallenged action must point to at least some facts suggesting a likelihood that its\\n\\nbusiness would have come about absent the challenged action. Aaron has alleged\\n\\nno supporting facts suggesting this likelihood. So its first assertion of injury fails.\\n\\n2. Aaron’s Alleged Injury Based on Additional Costs and Expenses Related to the\\n Challenged Statutes Is Insufficient to Establish Standing.\\n Aaron’s second asserted injury—that it incurred “additional costs and\\n\\nexpenses, attorney’s fees, interest, and cost of capital” from “interference and\\n\\ndelays with planning, raising investment funds, hiring, and other normal processes\\n\\nrelated to opening a business”—also fails to suffice. The threadbare allegations of\\n\\nadditional costs, expenses, and attorney’s fees are so vague that they do not\\n\\nestablish any of the elements of Article III standing. We cannot divine what these\\n\\nallegedly incurred costs are referring to, and so we cannot assess whether they give\\n\\nAaron a sufficient stake in this appeal, whether they are fairly traceable to the\\n\\nchallenged statutes, or whether they will be redressed by a favorable decision. See\\n\\nWarth, 422 U.S. at 508 (holding that a plaintiff must plead “specific, concrete facts\\n\\ndemonstrating that the challenged [action] harm[s] him, and that he personally\\n\\nwould benefit in a tangible way from the court's intervention” (emphasis altered)).\\n\\n\\n 14\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 15 of 18\\n\\n\\nAs to the allegation of “interest[] and cost of capital,” it appears that Aaron is\\n\\nsuggesting that it has some capital available for its clinic and that the challenged\\n\\nstatutes have prevented it from putting these funds to productive use. But because\\n\\nAaron has failed to allege a likelihood that its proposed clinic would imminently\\n\\nhave come into existence absent the challenged statutes, it cannot assert that the\\n\\nchallenged statutes, instead of Aaron’s lack of concrete plans to establish its clinic,\\n\\ncaused this injury.\\n\\n 3. Aaron’s Alleged Injury Based on Stigmatization and Discrimination Is\\n Insufficient to Establish Standing.\\n We also conclude that Aaron fails to establish its direct standing based on its\\n\\nallegation that the challenged statutes discriminate against and stigmatize it. A\\n\\nplaintiff alleging a stigmatic injury based on discrimination must point to “some\\n\\nconcrete interest with respect to which [he] [is] personally subject to\\n\\ndiscriminatory treatment,” and “[t]hat interest must independently satisfy the\\n\\ncausation requirement of standing doctrine.” Allen v. Wright, 468 U.S. 737, 757\\n\\nn.22 (1984), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control\\n\\nComponents, 572 U.S. 118 (2014). Here, even if the challenged statutes\\n\\ndiscriminate against opioid-addicted persons who are disabled, Aaron has not\\n\\nestablished that it is among the class of persons whose concrete interests are\\n\\naffected by discriminatory treatment. Aaron is a non-disabled entity, and its claims\\n\\nof direct injury are speculative. Because Aaron has not been subjected to\\n\\n\\n 15\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 16 of 18\\n\\n\\ndiscriminatory treatment, we agree with the district court that Aaron’s vague\\n\\nassertions of stigma and discrimination cannot establish its direct standing.\\n\\n 4. Aaron’s Remaining Arguments Regarding Standing Do Not Persuade Us.\\n\\n Aaron responds that it has standing because other federal courts have held\\n\\nthat plaintiffs whose attempts to establish methadone clinics were thwarted by\\n\\nlocal regulations had standing to challenge those regulations, but those other\\n\\ndecisions involved plaintiffs who had taken far more concrete steps than Aaron has\\n\\nallegedly taken. See, e.g., A Helping Hand, LLC v. Baltimore Cty., 515 F.3d 356,\\n\\n358–62 (4th Cir. 2008) (observing that the plaintiff “unquestionably” met the\\n\\nArticle III standing requirements where it (1) was in the business of operating\\n\\nmethadone clinics, (2) located a particular clinic location and signed a lease, (3)\\n\\nconsulted with local officials about founding its clinic, (4) applied for the required\\n\\nfederal and state certifications and permits, (5) submitted detailed plans about the\\n\\nrequested clinic site to county officials, and (6) associated with specific\\n\\nprospective patients who joined as plaintiffs to the lawsuit); see also New\\n\\nDirections Treatment Servs. v. City of Reading, 490 F.3d 293 (3d Cir. 2007);\\n\\nAddiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399 (3d Cir. 2005); MX\\n\\nGrp., Inc. v. City of Covington, 293 F.3d 326 (6th Cir. 2002). None of these\\n\\ndecisions persuades us that Aaron has standing.\\n\\n\\n\\n\\n 16\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 17 of 18\\n\\n\\n Aaron asserts that the lack of specific factual allegations about its plan to\\n\\nestablish a clinic should be excused because, by failing to take actions to establish\\n\\nits clinic, Aaron was mitigating its damages in preparation for this suit. Yet Aaron\\n\\nhas cited no authority suggesting that the Article III requirements for a prospective\\n\\nbusiness should be set aside whenever a duty to mitigate might be implicated.\\n\\nAaron must point to “specific, concrete facts demonstrating that the challenged\\n\\n[statutes] harm” it, Warth, 422 U.S. at 508, regardless of any duty it had to mitigate\\n\\ndamages.\\n\\n Aaron argues that the moratorium “preemptively blocked” the formation of\\n\\nrelationships with potential clients. But in the absence of any non-speculative\\n\\nreasons to believe Aaron would have imminently opened a methadone clinic but\\n\\nfor the challenged statutes, this argument merely piles speculation on speculation.\\n\\n Aaron points out that the enforcement provision of Title II of the American\\n\\nwith Disabilities Act states that an action may be brought by “any person alleging\\n\\ndiscrimination on the basis of disability.” 42 U.S.C. § 12133. Even if this provision\\n\\ngave Aaron a cause of action—which we do not decide—“it is settled that\\n\\nCongress cannot erase Article III’s standing requirements by statutorily granting\\n\\nthe right to sue to a plaintiff who would not otherwise have standing.” Spokeo, 136\\n\\nS. Ct. at 1547–48 (alteration adopted) (citation and internal quotation marks\\n\\nomitted).\\n\\n\\n\\n 17\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 18 of 18\\n\\n\\n C. Aaron Has Failed to Establish that It Has Third-Party Standing.\\n\\n We also agree with the district court that Aaron lacks third-party standing to\\n\\nassert the injuries suffered by its prospective clients. A plaintiff must satisfy three\\n\\ncriteria to bring claims on behalf of third parties: (1) the plaintiff must have\\n\\nsuffered an “injury-in-fact” that gives it a “sufficiently concrete interest” in the\\n\\ndispute; (2) the plaintiff must have a close relationship to the third party; and (3)\\n\\nthere must be a hindrance to the third party’s ability to protect its own interests.\\n\\nYoung Apartments, 529 F.3d at 1042 (citation omitted). Because we have held that\\n\\nAaron lacks an injury in fact, its third-party-standing argument fails. And we need\\n\\nnot reach the question whether Aaron also lacks statutory standing to assert third-\\n\\nparty claims under the Rehabilitation Act and the Americans with Disabilities Act.\\n\\n IV. CONCLUSION\\n\\n We AFFIRM the dismissal of Aaron’s complaint for lack of jurisdiction.\\n\\n\\n\\n\\n 18\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4356256/\", \"author_raw\": \"WILLIAM PRYOR, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"TJOFLAT"},"judge2":{"kind":"string","value":"PRYOR"},"judge3":{"kind":"string","value":"GILMAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4579003/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: AARON PRIVATE CLINIC MANAGEMENT LLC, Plaintiff-Appellant, v. Frank W. BERRY, in His Official Capacity as Commissioner of the Georgia Department of Community Health, and Nathan Deal, in His Official Capacity as Governor of Georgia, Defendants-Appellees.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-01-04\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-15144 Date Filed: 01/04/2019 Page: 1 of 18\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-15144\n ________________________\n\n D.C. Docket No. 1:17-cv-01034-WSD\n\n\n\nAARON PRIVATE CLINIC MANAGEMENT LLC,\n\n Plaintiff-Appellant,\n versus\n\nFRANK W. BERRY, in his official capacity as Commissioner of the Georgia\nDepartment of Community Health, and\nNATHAN DEAL, in his official capacity as Governor of Georgia,\n\n Defendants-Appellees.\n\n ________________________\n\n Appeal from the United States District Court\n for the Northern District of Georgia\n _______________________\n\n (January 4, 2019)\n\nBefore TJOFLAT, WILLIAM PRYOR, and GILMAN, * Circuit Judges.\n\nWILLIAM PRYOR, Circuit Judge:\n\n\n\n* Honorable Ronald L. Gilman, United States Circuit Judge for the Sixth Circuit, sitting by\ndesignation.\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 2 of 18\n\n\n This appeal requires us to decide whether a limited liability company that\n\nmade preliminary plans to operate a methadone clinic has standing to challenge\n\nstate laws that restrict the licensure of narcotic-treatment facilities. Aaron Private\n\nClinic Management sued certain Georgia officials after two Georgia laws\n\ntemporarily suspended the issuance of new licenses for narcotic-treatment facilities\n\nand imposed additional licensing requirements for future facilities. The district\n\ncourt dismissed the action for lack of standing. Because the challenge to the\n\nmoratorium is in part moot and because we agree with the district court that Aaron\n\nlacks standing to assert its other claims, we affirm.\n\n I. BACKGROUND\n\n Aaron Private Clinic Management is a for-profit company that asserts that it\n\n“intends to meet the standards to establish an [opioid-treatment program] in\n\nGeorgia.” Frank Berry is the commissioner for the Georgia Department of\n\nCommunity Health and, in that capacity, oversees the agency that issues licenses\n\nfor narcotic-treatment facilities in Georgia. Nathan Deal is the governor of\n\nGeorgia, and he has the ultimate authority to direct and control the operations of\n\nthe Georgia Department of Community Health.\n\n In May 2017, Aaron filed a complaint alleging that two Georgia statutes\n\nviolate section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and Title II of the\n\nAmericans with Disabilities Act, 42 U.S.C. § 12132. First, Aaron challenges a\n\n\n\n 2\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 3 of 18\n\n\n2016 statute, which it calls the “Licensing Moratorium,” that enacted “[a]\n\ntemporary moratorium on the acceptance of new applications for licensure of\n\nnarcotic treatment programs,” O.C.G.A. § 26-5-21(e). The Licensing Moratorium\n\nprohibited new applications from being accepted between June 1, 2016, and June\n\n30, 2017. Id. § 26-5-21(f). Second, Aaron challenges a 2017 statute, which it calls\n\nthe “License Cap,” that supersedes the Licensing Moratorium and provides that\n\nGeorgia’s Department of Community Health must establish minimum standards of\n\nquality for narcotic-treatment programs and provides for annual or biannual open-\n\nenrollment periods for program applications, see id. § 26-5-40 et seq. The License\n\nCap also extended the prohibition on accepting new licensure applications from\n\nJune 30, 2017, to December 1, 2017. Id. § 26-5-46(d).\n\n Aaron contends that the Licensing Moratorium and License Cap block it\n\nfrom establishing an opioid-treatment program and impose “arbitrary restrictions\n\nand burdens” on methadone clinics. Aaron asserts that it sues on its own behalf and\n\n“on behalf of its prospective patients who are opiate-addicted, who are qualified\n\ndisabled under the [Americans with Disabilities Act], and who are prospective\n\npatients of [Aaron].” Counts one through four of the complaint assert that the\n\nLicensing Moratorium and the License Cap are facially invalid under the\n\nRehabilitation Act and the Americans with Disabilities Act. Counts five and six\n\nassert an equal-protection challenge to the statutes, contending that “the State of\n\n\n\n 3\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 4 of 18\n\n\nGeorgia’s actions and disparate treatment . . . cause disproportionate impact to\n\n[Aaron] and the disabled persons [Aaron] intends to serve.” Aaron requests an\n\naward of compensatory damages and litigation expenses, a permanent injunction\n\nenjoining the defendants from continuing to violate the Americans with\n\nDisabilities Act and the Rehabilitation Act by “denying or delaying [Aaron’s]\n\nability to locate an [opioid-treatment program]” in Georgia, and a declaration that\n\nthe challenged statutes are void and unenforceable.\n\n In its complaint, Aaron alleges few facts about its plan to establish a\n\nmethadone clinic. Aaron first alleges that it is a Georgia limited liability company\n\nwith a principal place of business at 4403 Northside Parkway NW, Suite 1413,\n\nAtlanta, Georgia 30327. This address is the same as that of the law office of\n\nAaron’s counsel, James A. Dunlap. Aaron also alleges that it will use the “latest\n\nmedical technologies, including methadone maintenance treatment, to address the\n\nphysical symptoms of [opioid] addiction in combination with . . .\n\npsychotherapeutic interventions.” Aaron further alleges that its prospective opiate-\n\naddicted clients are disabled under the Rehabilitation Act and the Americans with\n\nDisabilities Act, and that Aaron’s programs will operate as “supervised\n\nrehabilitation programs” for persons with disabilities as described under federal\n\nlaw. And Aaron alleges in each count of the complaint that the challenged statutes\n\nhave caused it to expend additional time and financial resources, to lose the\n\n\n\n 4\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 5 of 18\n\n\nopportunity to conduct its business, and to incur “additional costs and expenses,\n\nattorney’s fees, interest, and cost of capital” from “interference and delays with\n\nplanning, raising investment funds, hiring, and other normal processes related to\n\nopening a business.” These allegations are all the complaint contains about\n\nAaron’s plan to establish a methadone clinic.\n\n Although Aaron offers few specifics about its proposed clinic, its complaint\n\nincludes more detailed allegations about the need for methadone clinics in Georgia.\n\nAaron alleges that the annual number of opioid overdose deaths in Georgia is\n\nskyrocketing, rising from roughly 200 in 2006 to nearly 1,000 in 2015. Aaron\n\nfurther asserts that many of Georgia’s methadone clinics are currently overcapacity\n\nand cannot accept new patients. Aaron also contends that the lack of capacity\n\ncauses a variety of harms to opioid-addicted persons, who face price gouging,\n\nlonger travel and wait times, and a lack of competition for treatment options. And\n\nAaron cites evidence suggesting that methadone treatment has proven to be\n\neffective in reducing the number of drug overdoses in a community.\n\n After Aaron filed its complaint, the defendants moved to dismiss on several\n\ngrounds, including for lack of standing. The district court granted the motion to\n\ndismiss. The court first determined that the complaint fails to establish that Aaron\n\ndirectly suffered an injury in fact that is “actual or imminent, not ‘conjectural’ or\n\n‘hypothetical.’” The court explained that the complaint alleges at most that Aaron\n\n\n\n 5\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 6 of 18\n\n\nwas in the early stages of the planning process, not that it would have been\n\nprepared to offer treatment to its prospective clients but for the challenged statutes.\n\nThe court also stated that, although Aaron labels the requirements imposed by the\n\nLicense Cap as “arbitrary and discriminatory,” it fails to identify any “specific\n\nrules with which it cannot comply, and does not allege why they are discriminatory\n\nor how they prevent [it] from establishing its clinic in the future.” And the court\n\nobserved that Aaron has not alleged that it had applied for a license and been\n\ndenied, that it would be prevented from participating in the open enrollment for\n\nnew licensure applications, or that it would be unsuccessful in such applications if\n\nthey were submitted. The district court also rejected Aaron’s contention that it had\n\nthird-party standing to assert the injuries suffered by its prospective clients. The\n\ndistrict court ruled that Aaron’s third-party-standing argument failed because\n\nAaron did not establish that it has suffered an injury in fact, that it has a close\n\nrelationship to a third party that is being discriminated against, and that there is\n\nsome hindrance to the third party’s ability to protect his or her own interests. See\n\nYoung Apartments v. Town of Jupiter, 529 F.3d 1027, 1042 (11th Cir. 2008).\n\nFinally, the district court ruled that, even if Aaron had sufficiently alleged direct or\n\nthird-party standing, it lacks statutory standing to assert these claims under either\n\nthe Rehabilitation Act or the Americans with Disabilities Act.\n\n\n\n\n 6\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 7 of 18\n\n\n II. STANDARD OF REVIEW\n\n We review the dismissal of a complaint de novo. Culverhouse v. Paulson &\n\nCo., 813 F.3d 991, 993 (11th Cir. 2016).\n\n III. DISCUSSION\n\n We divide our discussion in three parts. First, we explain that Aaron’s\n\nrequest for declaratory and injunctive relief regarding the temporary moratorium\n\non the acceptance of new licensure applications is moot. Second, we explain that\n\nAaron has failed to establish that it has direct standing. Third, we explain that\n\nAaron has failed to establish that it has third-party standing to assert the injuries of\n\nits prospective clients.\n\n A. Aaron’s Request for Declaratory and Injunctive Relief Regarding the\n Temporary Moratorium is Moot.\n\n Although the district court did not consider and the parties have not briefed\n\nthe issue of mootness, “[i]t is incumbent upon this court to consider issues of\n\nmootness sua sponte and, absent an applicable exception to the mootness doctrine,\n\nto dismiss any appeal that no longer presents a viable case or controversy.” Hunt v.\n\nAimco Props., 814 F.3d 1213, 1220 (11th Cir. 2016) (quoting Pac. Ins. Co. v. Gen.\n\nDev. Corp., 28 F.3d 1093, 1096 (11th Cir. 1994)). “A case is moot when it no\n\nlonger presents a live controversy with respect to which the court can give\n\nmeaningful relief.” Id. (quoting Ethredge v. Hail, 996 F.2d 1173, 1175 (11th Cir.\n\n1993)). Absent exceptional circumstances, a challenge to the enforcement of a\n\n\n 7\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 8 of 18\n\n\nstatute becomes moot when that law is no longer effective. See Burke v. Barnes,\n\n479 U.S. 361, 363 (1987) (explaining that challenges to an expired statute, like\n\nthose made to a repealed statute, are moot). And although the district court did not\n\nrely on mootness in dismissing the complaint, “[w]e may affirm on any ground\n\nsupported by the record, regardless of whether that ground was relied upon or even\n\nconsidered below.” Waldman v. Conway, 871 F.3d 1283, 1289 (11th Cir. 2017).\n\n As Aaron acknowledged at oral argument, its request for declaratory and\n\ninjunctive relief about the Licensing Moratorium was rendered moot by the\n\nexpiration of the moratorium in June 2017, and its similar request about the\n\nLicense Cap’s extension of the moratorium was rendered moot when that provision\n\nexpired in December 2017. Because no exception to the mootness doctrine applies\n\nto these requests for declaratory and injunctive relief, they are moot, and we affirm\n\nthe dismissal of them.\n\n B. Aaron Has Failed to Establish that It Has Article III Standing.\n\n The district court ruled, and we agree, that Aaron lacks direct standing\n\nbecause it failed to plead facts establishing that it had directly suffered an actual or\n\nimminent injury in fact. Article III of the Constitution limits the subject-matter\n\njurisdiction of federal courts to “Cases” and “Controversies.” U.S. Const. Art. III,\n\n§ 2. Standing “is the threshold question in every federal case, determining the\n\npower of the court to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498 (1975).\n\n\n\n 8\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 9 of 18\n\n\n“In the absence of standing, a court is not free to opine in an advisory capacity\n\nabout the merits of a plaintiff’s claims, and the court is powerless to continue.”\n\nCAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1269 (11th Cir.\n\n2006) (citations and internal quotation marks omitted).\n\n To establish its Article III standing, Aaron must satisfy three requirements.\n\nFirst, it “must have suffered an injury in fact—an invasion of a legally protected\n\ninterest which is (a) concrete and particularized and (b) actual or imminent, not\n\nconjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560\n\n(1992) (citations and internal quotation marks omitted). Second, “there must be a\n\ncausal connection between the injury and the conduct complained of—the injury\n\nhas to be fairly traceable to the challenged action of the defendant.” Id. (alterations\n\nadopted) (internal quotation marks omitted). Third, “it must be likely, as opposed\n\nto merely speculative, that the injury will be redressed by a favorable decision.” Id.\n\nat 561 (internal quotation marks omitted).\n\n Each element of standing is “an indispensable part of the plaintiff’s case”\n\nand “must be supported in the same way as any other matter on which the plaintiff\n\nbears the burden of proof, i.e., with the manner and degree of evidence required at\n\nthe successive stages of the litigation.” Id. “While the proof required to establish\n\nstanding increases as the suit proceeds, the standing inquiry remains focused on\n\nwhether the party invoking jurisdiction had the requisite stake in the outcome when\n\n\n\n 9\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 10 of 18\n\n\nthe suit was filed.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008)\n\n(citation omitted).\n\n To satisfy its burden at the pleading stage, a plaintiff must “clearly allege\n\nfacts demonstrating each element,” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547\n\n(2016) (alteration adopted) (citation and internal quotation marks omitted), and we\n\nevaluate standing on a motion to dismiss based on the facts alleged in the\n\ncomplaint, Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1335 (11th Cir.\n\n2013). To adequately allege injury in fact, it is not enough that a complaint “‘sets\n\nforth facts from which we could imagine an injury sufficient to satisfy Article III’s\n\nstanding requirements,’ since ‘we should not speculate concerning the existence\n\nof standing, nor should we imagine or piece together an injury sufficient to give\n\nplaintiff standing when it has demonstrated none.’” Bochese v. Town of Ponce\n\nInlet, 405 F.3d 964, 976 (11th Cir. 2005) (quoting Miccosukee Tribe of Indians v.\n\nFla. State Athletic Comm’n, 226 F.3d 1226, 1229–30 (11th Cir. 2000)). “If the\n\nplaintiff fails to meet its burden, this court lacks the power to create jurisdiction by\n\nembellishing a deficient allegation of injury.” Id.\n\n Aaron contends that it suffered three injuries sufficient to establish its\n\nstanding under Article III. First, Aaron asserts that the Licensing Moratorium and\n\nLicense Cap precluded or hindered it from developing an opioid-treatment\n\nprogram in Georgia and caused it to suffer lost profits. Second, Aaron alleges that\n\n\n\n 10\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 11 of 18\n\n\nthe challenged statutes caused it to incur “additional costs and expenses, attorney’s\n\nfees, interest, and cost of capital” from “interference and delays with planning,\n\nraising investment funds, hiring, and other normal processes related to opening a\n\nbusiness.” Third, Aaron alleges that the challenged statutes discriminate against\n\nand stigmatize it. We address each proffered injury in turn and determine that\n\nAaron has failed to establish its Article III standing.\n\n 1. Aaron’s Alleged Injury Based on Lost Profits Is Insufficient to Establish\n Standing.\n\n We begin with Aaron’s assertion that the challenged statutes thwarted its\n\nplan to open a methadone clinic and caused it to suffer lost profits. The district\n\ncourt concluded that this alleged injury was speculative. We agree with the district\n\ncourt.\n\n Although the complaint alleges that Aaron aspired to open a methadone\n\nclinic someday, it offers no facts suggesting that the “someday” was imminent or\n\nthat Aaron had any concrete plan in place for bringing its clinic into operation. The\n\nmost that the complaint alleges Aaron has done is form a limited liability company\n\nthat will serve as a management company for future methadone clinics, and it\n\nvaguely alleges “interference and delays with planning, raising investment funds,\n\nhiring, and other normal processes related to opening a business.” But these\n\nallegations are a far cry from alleging that, absent the challenged statutes, Aaron\n\nimmediately intended to bring, and actually could bring, its clinic into operation.\n\n\n 11\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 12 of 18\n\n\nAnd Aaron has failed to allege that it has taken any concrete steps—such as\n\nselecting a clinic location, securing a lease option, consulting with relevant\n\ngovernment officials, applying for the necessary permits or certifications, or\n\nassociating with potential clients—that suggest such an immediate intention or\n\nplan. Because Aaron has alleged only that it intends to found a clinic at some\n\nunspecified time in the future, its “‘some day’ intention[]—without any description\n\nof concrete plans, or indeed even any specification of when the some day will be—\n\ndo[es] not support a finding of . . . ‘actual or imminent’ injury.” Lujan, 504 U.S. at\n\n564.\n\n Ample precedent makes clear that Aaron must allege more than a bare\n\nintention to someday found a clinic. In Village of Arlington Heights v.\n\nMetropolitan Housing Development Corp., 429 U.S. 252 (1977), and Jackson v.\n\nOkaloosa County, 21 F.3d 1531 (11th Cir. 1994), the Supreme Court and this\n\nCourt held that plaintiffs alleging injuries related to proposed housing projects had\n\nto establish, among other things, a “substantial probability” that the projects would\n\ncome into existence absent the challenged action. See Arlington Heights, 429 U.S.\n\nat 264; Jackson, 21 F.3d at 1537–38. The plaintiffs in both decisions—unlike\n\nAaron—met this burden by pointing to specific and concrete facts that suggested\n\nsuch a substantial probability. See Arlington Heights, 429 U.S. at 255–58\n\n(observing that the developer of a proposed housing project was already in the\n\n\n\n 12\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 13 of 18\n\n\nbusiness of building similar housing projects, had entered into a 99-year lease and\n\nan accompanying agreement to purchase the land for the proposed project, had\n\nhired an architect and produced detailed plans for the project, and had submitted a\n\nvariety of detailed plans and reports as a part of a petition for rezoning); Jackson,\n\n21 F.3d at 1537–38 (observing that the bidding process for the proposed housing\n\nproject was nearly completed, the project’s sources of funding were established,\n\nand a bidder had submitted a bid to construct the facility at a specific proposed\n\nsite). And, in other factual contexts, the Supreme Court has repeatedly explained\n\nthat a plaintiff asserting that it would have engaged in an activity absent the\n\nchallenged statute must establish that it was “able and ready” to do so. See, e.g.,\n\nGratz v. Bollinger, 539 U.S. 244, 262 (2003) (explaining that the plaintiff had\n\nstanding to challenge affirmative-action policies at the defendant university\n\nbecause he established that he was “able and ready” to apply once the university\n\nstopped using race in admissions); Ne. Fla. Chapter, Associated Gen. Contractors\n\nof Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993) (holding that the plaintiffs\n\nhad standing to challenge an ordinance giving preferential treatment to minority-\n\nowned businesses because they “demonstrate[d] that [they were] able and ready to\n\nbid on contracts” (emphasis added)); Clements v. Fashing, 457 U.S. 957, 962\n\n(1982) (holding that plaintiff officeholders had standing because they credibly\n\nalleged that they would have announced their candidacy for other offices but for\n\n\n\n 13\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 14 of 18\n\n\nthe “automatic resignation” provision they were challenging). It is not enough for\n\nAaron to allege that there exists a need for methadone clinics in Georgia in the\n\nabsence of facts that would suggest its readiness to supply that need.\n\n A plaintiff alleging that it would have opened a business absent the\n\nchallenged action must point to at least some facts suggesting a likelihood that its\n\nbusiness would have come about absent the challenged action. Aaron has alleged\n\nno supporting facts suggesting this likelihood. So its first assertion of injury fails.\n\n2. Aaron’s Alleged Injury Based on Additional Costs and Expenses Related to the\n Challenged Statutes Is Insufficient to Establish Standing.\n Aaron’s second asserted injury—that it incurred “additional costs and\n\nexpenses, attorney’s fees, interest, and cost of capital” from “interference and\n\ndelays with planning, raising investment funds, hiring, and other normal processes\n\nrelated to opening a business”—also fails to suffice. The threadbare allegations of\n\nadditional costs, expenses, and attorney’s fees are so vague that they do not\n\nestablish any of the elements of Article III standing. We cannot divine what these\n\nallegedly incurred costs are referring to, and so we cannot assess whether they give\n\nAaron a sufficient stake in this appeal, whether they are fairly traceable to the\n\nchallenged statutes, or whether they will be redressed by a favorable decision. See\n\nWarth, 422 U.S. at 508 (holding that a plaintiff must plead “specific, concrete facts\n\ndemonstrating that the challenged [action] harm[s] him, and that he personally\n\nwould benefit in a tangible way from the court's intervention” (emphasis altered)).\n\n\n 14\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 15 of 18\n\n\nAs to the allegation of “interest[] and cost of capital,” it appears that Aaron is\n\nsuggesting that it has some capital available for its clinic and that the challenged\n\nstatutes have prevented it from putting these funds to productive use. But because\n\nAaron has failed to allege a likelihood that its proposed clinic would imminently\n\nhave come into existence absent the challenged statutes, it cannot assert that the\n\nchallenged statutes, instead of Aaron’s lack of concrete plans to establish its clinic,\n\ncaused this injury.\n\n 3. Aaron’s Alleged Injury Based on Stigmatization and Discrimination Is\n Insufficient to Establish Standing.\n We also conclude that Aaron fails to establish its direct standing based on its\n\nallegation that the challenged statutes discriminate against and stigmatize it. A\n\nplaintiff alleging a stigmatic injury based on discrimination must point to “some\n\nconcrete interest with respect to which [he] [is] personally subject to\n\ndiscriminatory treatment,” and “[t]hat interest must independently satisfy the\n\ncausation requirement of standing doctrine.” Allen v. Wright, 468 U.S. 737, 757\n\nn.22 (1984), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control\n\nComponents, 572 U.S. 118 (2014). Here, even if the challenged statutes\n\ndiscriminate against opioid-addicted persons who are disabled, Aaron has not\n\nestablished that it is among the class of persons whose concrete interests are\n\naffected by discriminatory treatment. Aaron is a non-disabled entity, and its claims\n\nof direct injury are speculative. Because Aaron has not been subjected to\n\n\n 15\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 16 of 18\n\n\ndiscriminatory treatment, we agree with the district court that Aaron’s vague\n\nassertions of stigma and discrimination cannot establish its direct standing.\n\n 4. Aaron’s Remaining Arguments Regarding Standing Do Not Persuade Us.\n\n Aaron responds that it has standing because other federal courts have held\n\nthat plaintiffs whose attempts to establish methadone clinics were thwarted by\n\nlocal regulations had standing to challenge those regulations, but those other\n\ndecisions involved plaintiffs who had taken far more concrete steps than Aaron has\n\nallegedly taken. See, e.g., A Helping Hand, LLC v. Baltimore Cty., 515 F.3d 356,\n\n358–62 (4th Cir. 2008) (observing that the plaintiff “unquestionably” met the\n\nArticle III standing requirements where it (1) was in the business of operating\n\nmethadone clinics, (2) located a particular clinic location and signed a lease, (3)\n\nconsulted with local officials about founding its clinic, (4) applied for the required\n\nfederal and state certifications and permits, (5) submitted detailed plans about the\n\nrequested clinic site to county officials, and (6) associated with specific\n\nprospective patients who joined as plaintiffs to the lawsuit); see also New\n\nDirections Treatment Servs. v. City of Reading, 490 F.3d 293 (3d Cir. 2007);\n\nAddiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399 (3d Cir. 2005); MX\n\nGrp., Inc. v. City of Covington, 293 F.3d 326 (6th Cir. 2002). None of these\n\ndecisions persuades us that Aaron has standing.\n\n\n\n\n 16\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 17 of 18\n\n\n Aaron asserts that the lack of specific factual allegations about its plan to\n\nestablish a clinic should be excused because, by failing to take actions to establish\n\nits clinic, Aaron was mitigating its damages in preparation for this suit. Yet Aaron\n\nhas cited no authority suggesting that the Article III requirements for a prospective\n\nbusiness should be set aside whenever a duty to mitigate might be implicated.\n\nAaron must point to “specific, concrete facts demonstrating that the challenged\n\n[statutes] harm” it, Warth, 422 U.S. at 508, regardless of any duty it had to mitigate\n\ndamages.\n\n Aaron argues that the moratorium “preemptively blocked” the formation of\n\nrelationships with potential clients. But in the absence of any non-speculative\n\nreasons to believe Aaron would have imminently opened a methadone clinic but\n\nfor the challenged statutes, this argument merely piles speculation on speculation.\n\n Aaron points out that the enforcement provision of Title II of the American\n\nwith Disabilities Act states that an action may be brought by “any person alleging\n\ndiscrimination on the basis of disability.” 42 U.S.C. § 12133. Even if this provision\n\ngave Aaron a cause of action—which we do not decide—“it is settled that\n\nCongress cannot erase Article III’s standing requirements by statutorily granting\n\nthe right to sue to a plaintiff who would not otherwise have standing.” Spokeo, 136\n\nS. Ct. at 1547–48 (alteration adopted) (citation and internal quotation marks\n\nomitted).\n\n\n\n 17\n\f Case: 17-15144 Date Filed: 01/04/2019 Page: 18 of 18\n\n\n C. Aaron Has Failed to Establish that It Has Third-Party Standing.\n\n We also agree with the district court that Aaron lacks third-party standing to\n\nassert the injuries suffered by its prospective clients. A plaintiff must satisfy three\n\ncriteria to bring claims on behalf of third parties: (1) the plaintiff must have\n\nsuffered an “injury-in-fact” that gives it a “sufficiently concrete interest” in the\n\ndispute; (2) the plaintiff must have a close relationship to the third party; and (3)\n\nthere must be a hindrance to the third party’s ability to protect its own interests.\n\nYoung Apartments, 529 F.3d at 1042 (citation omitted). Because we have held that\n\nAaron lacks an injury in fact, its third-party-standing argument fails. And we need\n\nnot reach the question whether Aaron also lacks statutory standing to assert third-\n\nparty claims under the Rehabilitation Act and the Americans with Disabilities Act.\n\n IV. CONCLUSION\n\n We AFFIRM the dismissal of Aaron’s complaint for lack of jurisdiction.\n\n\n\n\n 18\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: AARON PRIVATE CLINIC MANAGEMENT LLC, Plaintiff-Appellant, v. Frank W. BERRY, in His Official Capacity as Commissioner of the Georgia Department of Community Health, and Nathan Deal, in His Official Capacity as Governor of Georgia, Defendants-Appellees.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-01-04\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-15144 Date Filed: 01/04/2019 Page: 1 of 18\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-15144\\n ________________________\\n\\n D.C. Docket No. 1:17-cv-01034-WSD\\n\\n\\n\\nAARON PRIVATE CLINIC MANAGEMENT LLC,\\n\\n Plaintiff-Appellant,\\n versus\\n\\nFRANK W. BERRY, in his official capacity as Commissioner of the Georgia\\nDepartment of Community Health, and\\nNATHAN DEAL, in his official capacity as Governor of Georgia,\\n\\n Defendants-Appellees.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Northern District of Georgia\\n _______________________\\n\\n (January 4, 2019)\\n\\nBefore TJOFLAT, WILLIAM PRYOR, and GILMAN, * Circuit Judges.\\n\\nWILLIAM PRYOR, Circuit Judge:\\n\\n\\n\\n* Honorable Ronald L. Gilman, United States Circuit Judge for the Sixth Circuit, sitting by\\ndesignation.\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 2 of 18\\n\\n\\n This appeal requires us to decide whether a limited liability company that\\n\\nmade preliminary plans to operate a methadone clinic has standing to challenge\\n\\nstate laws that restrict the licensure of narcotic-treatment facilities. Aaron Private\\n\\nClinic Management sued certain Georgia officials after two Georgia laws\\n\\ntemporarily suspended the issuance of new licenses for narcotic-treatment facilities\\n\\nand imposed additional licensing requirements for future facilities. The district\\n\\ncourt dismissed the action for lack of standing. Because the challenge to the\\n\\nmoratorium is in part moot and because we agree with the district court that Aaron\\n\\nlacks standing to assert its other claims, we affirm.\\n\\n I. BACKGROUND\\n\\n Aaron Private Clinic Management is a for-profit company that asserts that it\\n\\n“intends to meet the standards to establish an [opioid-treatment program] in\\n\\nGeorgia.” Frank Berry is the commissioner for the Georgia Department of\\n\\nCommunity Health and, in that capacity, oversees the agency that issues licenses\\n\\nfor narcotic-treatment facilities in Georgia. Nathan Deal is the governor of\\n\\nGeorgia, and he has the ultimate authority to direct and control the operations of\\n\\nthe Georgia Department of Community Health.\\n\\n In May 2017, Aaron filed a complaint alleging that two Georgia statutes\\n\\nviolate section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and Title II of the\\n\\nAmericans with Disabilities Act, 42 U.S.C. § 12132. First, Aaron challenges a\\n\\n\\n\\n 2\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 3 of 18\\n\\n\\n2016 statute, which it calls the “Licensing Moratorium,” that enacted “[a]\\n\\ntemporary moratorium on the acceptance of new applications for licensure of\\n\\nnarcotic treatment programs,” O.C.G.A. § 26-5-21(e). The Licensing Moratorium\\n\\nprohibited new applications from being accepted between June 1, 2016, and June\\n\\n30, 2017. Id. § 26-5-21(f). Second, Aaron challenges a 2017 statute, which it calls\\n\\nthe “License Cap,” that supersedes the Licensing Moratorium and provides that\\n\\nGeorgia’s Department of Community Health must establish minimum standards of\\n\\nquality for narcotic-treatment programs and provides for annual or biannual open-\\n\\nenrollment periods for program applications, see id. § 26-5-40 et seq. The License\\n\\nCap also extended the prohibition on accepting new licensure applications from\\n\\nJune 30, 2017, to December 1, 2017. Id. § 26-5-46(d).\\n\\n Aaron contends that the Licensing Moratorium and License Cap block it\\n\\nfrom establishing an opioid-treatment program and impose “arbitrary restrictions\\n\\nand burdens” on methadone clinics. Aaron asserts that it sues on its own behalf and\\n\\n“on behalf of its prospective patients who are opiate-addicted, who are qualified\\n\\ndisabled under the [Americans with Disabilities Act], and who are prospective\\n\\npatients of [Aaron].” Counts one through four of the complaint assert that the\\n\\nLicensing Moratorium and the License Cap are facially invalid under the\\n\\nRehabilitation Act and the Americans with Disabilities Act. Counts five and six\\n\\nassert an equal-protection challenge to the statutes, contending that “the State of\\n\\n\\n\\n 3\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 4 of 18\\n\\n\\nGeorgia’s actions and disparate treatment . . . cause disproportionate impact to\\n\\n[Aaron] and the disabled persons [Aaron] intends to serve.” Aaron requests an\\n\\naward of compensatory damages and litigation expenses, a permanent injunction\\n\\nenjoining the defendants from continuing to violate the Americans with\\n\\nDisabilities Act and the Rehabilitation Act by “denying or delaying [Aaron’s]\\n\\nability to locate an [opioid-treatment program]” in Georgia, and a declaration that\\n\\nthe challenged statutes are void and unenforceable.\\n\\n In its complaint, Aaron alleges few facts about its plan to establish a\\n\\nmethadone clinic. Aaron first alleges that it is a Georgia limited liability company\\n\\nwith a principal place of business at 4403 Northside Parkway NW, Suite 1413,\\n\\nAtlanta, Georgia 30327. This address is the same as that of the law office of\\n\\nAaron’s counsel, James A. Dunlap. Aaron also alleges that it will use the “latest\\n\\nmedical technologies, including methadone maintenance treatment, to address the\\n\\nphysical symptoms of [opioid] addiction in combination with . . .\\n\\npsychotherapeutic interventions.” Aaron further alleges that its prospective opiate-\\n\\naddicted clients are disabled under the Rehabilitation Act and the Americans with\\n\\nDisabilities Act, and that Aaron’s programs will operate as “supervised\\n\\nrehabilitation programs” for persons with disabilities as described under federal\\n\\nlaw. And Aaron alleges in each count of the complaint that the challenged statutes\\n\\nhave caused it to expend additional time and financial resources, to lose the\\n\\n\\n\\n 4\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 5 of 18\\n\\n\\nopportunity to conduct its business, and to incur “additional costs and expenses,\\n\\nattorney’s fees, interest, and cost of capital” from “interference and delays with\\n\\nplanning, raising investment funds, hiring, and other normal processes related to\\n\\nopening a business.” These allegations are all the complaint contains about\\n\\nAaron’s plan to establish a methadone clinic.\\n\\n Although Aaron offers few specifics about its proposed clinic, its complaint\\n\\nincludes more detailed allegations about the need for methadone clinics in Georgia.\\n\\nAaron alleges that the annual number of opioid overdose deaths in Georgia is\\n\\nskyrocketing, rising from roughly 200 in 2006 to nearly 1,000 in 2015. Aaron\\n\\nfurther asserts that many of Georgia’s methadone clinics are currently overcapacity\\n\\nand cannot accept new patients. Aaron also contends that the lack of capacity\\n\\ncauses a variety of harms to opioid-addicted persons, who face price gouging,\\n\\nlonger travel and wait times, and a lack of competition for treatment options. And\\n\\nAaron cites evidence suggesting that methadone treatment has proven to be\\n\\neffective in reducing the number of drug overdoses in a community.\\n\\n After Aaron filed its complaint, the defendants moved to dismiss on several\\n\\ngrounds, including for lack of standing. The district court granted the motion to\\n\\ndismiss. The court first determined that the complaint fails to establish that Aaron\\n\\ndirectly suffered an injury in fact that is “actual or imminent, not ‘conjectural’ or\\n\\n‘hypothetical.’” The court explained that the complaint alleges at most that Aaron\\n\\n\\n\\n 5\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 6 of 18\\n\\n\\nwas in the early stages of the planning process, not that it would have been\\n\\nprepared to offer treatment to its prospective clients but for the challenged statutes.\\n\\nThe court also stated that, although Aaron labels the requirements imposed by the\\n\\nLicense Cap as “arbitrary and discriminatory,” it fails to identify any “specific\\n\\nrules with which it cannot comply, and does not allege why they are discriminatory\\n\\nor how they prevent [it] from establishing its clinic in the future.” And the court\\n\\nobserved that Aaron has not alleged that it had applied for a license and been\\n\\ndenied, that it would be prevented from participating in the open enrollment for\\n\\nnew licensure applications, or that it would be unsuccessful in such applications if\\n\\nthey were submitted. The district court also rejected Aaron’s contention that it had\\n\\nthird-party standing to assert the injuries suffered by its prospective clients. The\\n\\ndistrict court ruled that Aaron’s third-party-standing argument failed because\\n\\nAaron did not establish that it has suffered an injury in fact, that it has a close\\n\\nrelationship to a third party that is being discriminated against, and that there is\\n\\nsome hindrance to the third party’s ability to protect his or her own interests. See\\n\\nYoung Apartments v. Town of Jupiter, 529 F.3d 1027, 1042 (11th Cir. 2008).\\n\\nFinally, the district court ruled that, even if Aaron had sufficiently alleged direct or\\n\\nthird-party standing, it lacks statutory standing to assert these claims under either\\n\\nthe Rehabilitation Act or the Americans with Disabilities Act.\\n\\n\\n\\n\\n 6\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 7 of 18\\n\\n\\n II. STANDARD OF REVIEW\\n\\n We review the dismissal of a complaint de novo. Culverhouse v. Paulson &\\n\\nCo., 813 F.3d 991, 993 (11th Cir. 2016).\\n\\n III. DISCUSSION\\n\\n We divide our discussion in three parts. First, we explain that Aaron’s\\n\\nrequest for declaratory and injunctive relief regarding the temporary moratorium\\n\\non the acceptance of new licensure applications is moot. Second, we explain that\\n\\nAaron has failed to establish that it has direct standing. Third, we explain that\\n\\nAaron has failed to establish that it has third-party standing to assert the injuries of\\n\\nits prospective clients.\\n\\n A. Aaron’s Request for Declaratory and Injunctive Relief Regarding the\\n Temporary Moratorium is Moot.\\n\\n Although the district court did not consider and the parties have not briefed\\n\\nthe issue of mootness, “[i]t is incumbent upon this court to consider issues of\\n\\nmootness sua sponte and, absent an applicable exception to the mootness doctrine,\\n\\nto dismiss any appeal that no longer presents a viable case or controversy.” Hunt v.\\n\\nAimco Props., 814 F.3d 1213, 1220 (11th Cir. 2016) (quoting Pac. Ins. Co. v. Gen.\\n\\nDev. Corp., 28 F.3d 1093, 1096 (11th Cir. 1994)). “A case is moot when it no\\n\\nlonger presents a live controversy with respect to which the court can give\\n\\nmeaningful relief.” Id. (quoting Ethredge v. Hail, 996 F.2d 1173, 1175 (11th Cir.\\n\\n1993)). Absent exceptional circumstances, a challenge to the enforcement of a\\n\\n\\n 7\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 8 of 18\\n\\n\\nstatute becomes moot when that law is no longer effective. See Burke v. Barnes,\\n\\n479 U.S. 361, 363 (1987) (explaining that challenges to an expired statute, like\\n\\nthose made to a repealed statute, are moot). And although the district court did not\\n\\nrely on mootness in dismissing the complaint, “[w]e may affirm on any ground\\n\\nsupported by the record, regardless of whether that ground was relied upon or even\\n\\nconsidered below.” Waldman v. Conway, 871 F.3d 1283, 1289 (11th Cir. 2017).\\n\\n As Aaron acknowledged at oral argument, its request for declaratory and\\n\\ninjunctive relief about the Licensing Moratorium was rendered moot by the\\n\\nexpiration of the moratorium in June 2017, and its similar request about the\\n\\nLicense Cap’s extension of the moratorium was rendered moot when that provision\\n\\nexpired in December 2017. Because no exception to the mootness doctrine applies\\n\\nto these requests for declaratory and injunctive relief, they are moot, and we affirm\\n\\nthe dismissal of them.\\n\\n B. Aaron Has Failed to Establish that It Has Article III Standing.\\n\\n The district court ruled, and we agree, that Aaron lacks direct standing\\n\\nbecause it failed to plead facts establishing that it had directly suffered an actual or\\n\\nimminent injury in fact. Article III of the Constitution limits the subject-matter\\n\\njurisdiction of federal courts to “Cases” and “Controversies.” U.S. Const. Art. III,\\n\\n§ 2. Standing “is the threshold question in every federal case, determining the\\n\\npower of the court to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498 (1975).\\n\\n\\n\\n 8\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 9 of 18\\n\\n\\n“In the absence of standing, a court is not free to opine in an advisory capacity\\n\\nabout the merits of a plaintiff’s claims, and the court is powerless to continue.”\\n\\nCAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1269 (11th Cir.\\n\\n2006) (citations and internal quotation marks omitted).\\n\\n To establish its Article III standing, Aaron must satisfy three requirements.\\n\\nFirst, it “must have suffered an injury in fact—an invasion of a legally protected\\n\\ninterest which is (a) concrete and particularized and (b) actual or imminent, not\\n\\nconjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560\\n\\n(1992) (citations and internal quotation marks omitted). Second, “there must be a\\n\\ncausal connection between the injury and the conduct complained of—the injury\\n\\nhas to be fairly traceable to the challenged action of the defendant.” Id. (alterations\\n\\nadopted) (internal quotation marks omitted). Third, “it must be likely, as opposed\\n\\nto merely speculative, that the injury will be redressed by a favorable decision.” Id.\\n\\nat 561 (internal quotation marks omitted).\\n\\n Each element of standing is “an indispensable part of the plaintiff’s case”\\n\\nand “must be supported in the same way as any other matter on which the plaintiff\\n\\nbears the burden of proof, i.e., with the manner and degree of evidence required at\\n\\nthe successive stages of the litigation.” Id. “While the proof required to establish\\n\\nstanding increases as the suit proceeds, the standing inquiry remains focused on\\n\\nwhether the party invoking jurisdiction had the requisite stake in the outcome when\\n\\n\\n\\n 9\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 10 of 18\\n\\n\\nthe suit was filed.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008)\\n\\n(citation omitted).\\n\\n To satisfy its burden at the pleading stage, a plaintiff must “clearly allege\\n\\nfacts demonstrating each element,” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547\\n\\n(2016) (alteration adopted) (citation and internal quotation marks omitted), and we\\n\\nevaluate standing on a motion to dismiss based on the facts alleged in the\\n\\ncomplaint, Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1335 (11th Cir.\\n\\n2013). To adequately allege injury in fact, it is not enough that a complaint “‘sets\\n\\nforth facts from which we could imagine an injury sufficient to satisfy Article III’s\\n\\nstanding requirements,’ since ‘we should not speculate concerning the existence\\n\\nof standing, nor should we imagine or piece together an injury sufficient to give\\n\\nplaintiff standing when it has demonstrated none.’” Bochese v. Town of Ponce\\n\\nInlet, 405 F.3d 964, 976 (11th Cir. 2005) (quoting Miccosukee Tribe of Indians v.\\n\\nFla. State Athletic Comm’n, 226 F.3d 1226, 1229–30 (11th Cir. 2000)). “If the\\n\\nplaintiff fails to meet its burden, this court lacks the power to create jurisdiction by\\n\\nembellishing a deficient allegation of injury.” Id.\\n\\n Aaron contends that it suffered three injuries sufficient to establish its\\n\\nstanding under Article III. First, Aaron asserts that the Licensing Moratorium and\\n\\nLicense Cap precluded or hindered it from developing an opioid-treatment\\n\\nprogram in Georgia and caused it to suffer lost profits. Second, Aaron alleges that\\n\\n\\n\\n 10\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 11 of 18\\n\\n\\nthe challenged statutes caused it to incur “additional costs and expenses, attorney’s\\n\\nfees, interest, and cost of capital” from “interference and delays with planning,\\n\\nraising investment funds, hiring, and other normal processes related to opening a\\n\\nbusiness.” Third, Aaron alleges that the challenged statutes discriminate against\\n\\nand stigmatize it. We address each proffered injury in turn and determine that\\n\\nAaron has failed to establish its Article III standing.\\n\\n 1. Aaron’s Alleged Injury Based on Lost Profits Is Insufficient to Establish\\n Standing.\\n\\n We begin with Aaron’s assertion that the challenged statutes thwarted its\\n\\nplan to open a methadone clinic and caused it to suffer lost profits. The district\\n\\ncourt concluded that this alleged injury was speculative. We agree with the district\\n\\ncourt.\\n\\n Although the complaint alleges that Aaron aspired to open a methadone\\n\\nclinic someday, it offers no facts suggesting that the “someday” was imminent or\\n\\nthat Aaron had any concrete plan in place for bringing its clinic into operation. The\\n\\nmost that the complaint alleges Aaron has done is form a limited liability company\\n\\nthat will serve as a management company for future methadone clinics, and it\\n\\nvaguely alleges “interference and delays with planning, raising investment funds,\\n\\nhiring, and other normal processes related to opening a business.” But these\\n\\nallegations are a far cry from alleging that, absent the challenged statutes, Aaron\\n\\nimmediately intended to bring, and actually could bring, its clinic into operation.\\n\\n\\n 11\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 12 of 18\\n\\n\\nAnd Aaron has failed to allege that it has taken any concrete steps—such as\\n\\nselecting a clinic location, securing a lease option, consulting with relevant\\n\\ngovernment officials, applying for the necessary permits or certifications, or\\n\\nassociating with potential clients—that suggest such an immediate intention or\\n\\nplan. Because Aaron has alleged only that it intends to found a clinic at some\\n\\nunspecified time in the future, its “‘some day’ intention[]—without any description\\n\\nof concrete plans, or indeed even any specification of when the some day will be—\\n\\ndo[es] not support a finding of . . . ‘actual or imminent’ injury.” Lujan, 504 U.S. at\\n\\n564.\\n\\n Ample precedent makes clear that Aaron must allege more than a bare\\n\\nintention to someday found a clinic. In Village of Arlington Heights v.\\n\\nMetropolitan Housing Development Corp., 429 U.S. 252 (1977), and Jackson v.\\n\\nOkaloosa County, 21 F.3d 1531 (11th Cir. 1994), the Supreme Court and this\\n\\nCourt held that plaintiffs alleging injuries related to proposed housing projects had\\n\\nto establish, among other things, a “substantial probability” that the projects would\\n\\ncome into existence absent the challenged action. See Arlington Heights, 429 U.S.\\n\\nat 264; Jackson, 21 F.3d at 1537–38. The plaintiffs in both decisions—unlike\\n\\nAaron—met this burden by pointing to specific and concrete facts that suggested\\n\\nsuch a substantial probability. See Arlington Heights, 429 U.S. at 255–58\\n\\n(observing that the developer of a proposed housing project was already in the\\n\\n\\n\\n 12\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 13 of 18\\n\\n\\nbusiness of building similar housing projects, had entered into a 99-year lease and\\n\\nan accompanying agreement to purchase the land for the proposed project, had\\n\\nhired an architect and produced detailed plans for the project, and had submitted a\\n\\nvariety of detailed plans and reports as a part of a petition for rezoning); Jackson,\\n\\n21 F.3d at 1537–38 (observing that the bidding process for the proposed housing\\n\\nproject was nearly completed, the project’s sources of funding were established,\\n\\nand a bidder had submitted a bid to construct the facility at a specific proposed\\n\\nsite). And, in other factual contexts, the Supreme Court has repeatedly explained\\n\\nthat a plaintiff asserting that it would have engaged in an activity absent the\\n\\nchallenged statute must establish that it was “able and ready” to do so. See, e.g.,\\n\\nGratz v. Bollinger, 539 U.S. 244, 262 (2003) (explaining that the plaintiff had\\n\\nstanding to challenge affirmative-action policies at the defendant university\\n\\nbecause he established that he was “able and ready” to apply once the university\\n\\nstopped using race in admissions); Ne. Fla. Chapter, Associated Gen. Contractors\\n\\nof Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993) (holding that the plaintiffs\\n\\nhad standing to challenge an ordinance giving preferential treatment to minority-\\n\\nowned businesses because they “demonstrate[d] that [they were] able and ready to\\n\\nbid on contracts” (emphasis added)); Clements v. Fashing, 457 U.S. 957, 962\\n\\n(1982) (holding that plaintiff officeholders had standing because they credibly\\n\\nalleged that they would have announced their candidacy for other offices but for\\n\\n\\n\\n 13\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 14 of 18\\n\\n\\nthe “automatic resignation” provision they were challenging). It is not enough for\\n\\nAaron to allege that there exists a need for methadone clinics in Georgia in the\\n\\nabsence of facts that would suggest its readiness to supply that need.\\n\\n A plaintiff alleging that it would have opened a business absent the\\n\\nchallenged action must point to at least some facts suggesting a likelihood that its\\n\\nbusiness would have come about absent the challenged action. Aaron has alleged\\n\\nno supporting facts suggesting this likelihood. So its first assertion of injury fails.\\n\\n2. Aaron’s Alleged Injury Based on Additional Costs and Expenses Related to the\\n Challenged Statutes Is Insufficient to Establish Standing.\\n Aaron’s second asserted injury—that it incurred “additional costs and\\n\\nexpenses, attorney’s fees, interest, and cost of capital” from “interference and\\n\\ndelays with planning, raising investment funds, hiring, and other normal processes\\n\\nrelated to opening a business”—also fails to suffice. The threadbare allegations of\\n\\nadditional costs, expenses, and attorney’s fees are so vague that they do not\\n\\nestablish any of the elements of Article III standing. We cannot divine what these\\n\\nallegedly incurred costs are referring to, and so we cannot assess whether they give\\n\\nAaron a sufficient stake in this appeal, whether they are fairly traceable to the\\n\\nchallenged statutes, or whether they will be redressed by a favorable decision. See\\n\\nWarth, 422 U.S. at 508 (holding that a plaintiff must plead “specific, concrete facts\\n\\ndemonstrating that the challenged [action] harm[s] him, and that he personally\\n\\nwould benefit in a tangible way from the court's intervention” (emphasis altered)).\\n\\n\\n 14\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 15 of 18\\n\\n\\nAs to the allegation of “interest[] and cost of capital,” it appears that Aaron is\\n\\nsuggesting that it has some capital available for its clinic and that the challenged\\n\\nstatutes have prevented it from putting these funds to productive use. But because\\n\\nAaron has failed to allege a likelihood that its proposed clinic would imminently\\n\\nhave come into existence absent the challenged statutes, it cannot assert that the\\n\\nchallenged statutes, instead of Aaron’s lack of concrete plans to establish its clinic,\\n\\ncaused this injury.\\n\\n 3. Aaron’s Alleged Injury Based on Stigmatization and Discrimination Is\\n Insufficient to Establish Standing.\\n We also conclude that Aaron fails to establish its direct standing based on its\\n\\nallegation that the challenged statutes discriminate against and stigmatize it. A\\n\\nplaintiff alleging a stigmatic injury based on discrimination must point to “some\\n\\nconcrete interest with respect to which [he] [is] personally subject to\\n\\ndiscriminatory treatment,” and “[t]hat interest must independently satisfy the\\n\\ncausation requirement of standing doctrine.” Allen v. Wright, 468 U.S. 737, 757\\n\\nn.22 (1984), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control\\n\\nComponents, 572 U.S. 118 (2014). Here, even if the challenged statutes\\n\\ndiscriminate against opioid-addicted persons who are disabled, Aaron has not\\n\\nestablished that it is among the class of persons whose concrete interests are\\n\\naffected by discriminatory treatment. Aaron is a non-disabled entity, and its claims\\n\\nof direct injury are speculative. Because Aaron has not been subjected to\\n\\n\\n 15\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 16 of 18\\n\\n\\ndiscriminatory treatment, we agree with the district court that Aaron’s vague\\n\\nassertions of stigma and discrimination cannot establish its direct standing.\\n\\n 4. Aaron’s Remaining Arguments Regarding Standing Do Not Persuade Us.\\n\\n Aaron responds that it has standing because other federal courts have held\\n\\nthat plaintiffs whose attempts to establish methadone clinics were thwarted by\\n\\nlocal regulations had standing to challenge those regulations, but those other\\n\\ndecisions involved plaintiffs who had taken far more concrete steps than Aaron has\\n\\nallegedly taken. See, e.g., A Helping Hand, LLC v. Baltimore Cty., 515 F.3d 356,\\n\\n358–62 (4th Cir. 2008) (observing that the plaintiff “unquestionably” met the\\n\\nArticle III standing requirements where it (1) was in the business of operating\\n\\nmethadone clinics, (2) located a particular clinic location and signed a lease, (3)\\n\\nconsulted with local officials about founding its clinic, (4) applied for the required\\n\\nfederal and state certifications and permits, (5) submitted detailed plans about the\\n\\nrequested clinic site to county officials, and (6) associated with specific\\n\\nprospective patients who joined as plaintiffs to the lawsuit); see also New\\n\\nDirections Treatment Servs. v. City of Reading, 490 F.3d 293 (3d Cir. 2007);\\n\\nAddiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399 (3d Cir. 2005); MX\\n\\nGrp., Inc. v. City of Covington, 293 F.3d 326 (6th Cir. 2002). None of these\\n\\ndecisions persuades us that Aaron has standing.\\n\\n\\n\\n\\n 16\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 17 of 18\\n\\n\\n Aaron asserts that the lack of specific factual allegations about its plan to\\n\\nestablish a clinic should be excused because, by failing to take actions to establish\\n\\nits clinic, Aaron was mitigating its damages in preparation for this suit. Yet Aaron\\n\\nhas cited no authority suggesting that the Article III requirements for a prospective\\n\\nbusiness should be set aside whenever a duty to mitigate might be implicated.\\n\\nAaron must point to “specific, concrete facts demonstrating that the challenged\\n\\n[statutes] harm” it, Warth, 422 U.S. at 508, regardless of any duty it had to mitigate\\n\\ndamages.\\n\\n Aaron argues that the moratorium “preemptively blocked” the formation of\\n\\nrelationships with potential clients. But in the absence of any non-speculative\\n\\nreasons to believe Aaron would have imminently opened a methadone clinic but\\n\\nfor the challenged statutes, this argument merely piles speculation on speculation.\\n\\n Aaron points out that the enforcement provision of Title II of the American\\n\\nwith Disabilities Act states that an action may be brought by “any person alleging\\n\\ndiscrimination on the basis of disability.” 42 U.S.C. § 12133. Even if this provision\\n\\ngave Aaron a cause of action—which we do not decide—“it is settled that\\n\\nCongress cannot erase Article III’s standing requirements by statutorily granting\\n\\nthe right to sue to a plaintiff who would not otherwise have standing.” Spokeo, 136\\n\\nS. Ct. at 1547–48 (alteration adopted) (citation and internal quotation marks\\n\\nomitted).\\n\\n\\n\\n 17\\n\\f Case: 17-15144 Date Filed: 01/04/2019 Page: 18 of 18\\n\\n\\n C. Aaron Has Failed to Establish that It Has Third-Party Standing.\\n\\n We also agree with the district court that Aaron lacks third-party standing to\\n\\nassert the injuries suffered by its prospective clients. A plaintiff must satisfy three\\n\\ncriteria to bring claims on behalf of third parties: (1) the plaintiff must have\\n\\nsuffered an “injury-in-fact” that gives it a “sufficiently concrete interest” in the\\n\\ndispute; (2) the plaintiff must have a close relationship to the third party; and (3)\\n\\nthere must be a hindrance to the third party’s ability to protect its own interests.\\n\\nYoung Apartments, 529 F.3d at 1042 (citation omitted). Because we have held that\\n\\nAaron lacks an injury in fact, its third-party-standing argument fails. And we need\\n\\nnot reach the question whether Aaron also lacks statutory standing to assert third-\\n\\nparty claims under the Rehabilitation Act and the Americans with Disabilities Act.\\n\\n IV. CONCLUSION\\n\\n We AFFIRM the dismissal of Aaron’s complaint for lack of jurisdiction.\\n\\n\\n\\n\\n 18\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":395,"cells":{"id":{"kind":"number","value":4579669,"string":"4,579,669"},"name":{"kind":"string","value":"Curtis SOLOMON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee."},"name_abbreviation":{"kind":"string","value":"Curtis Solomon v. United States"},"decision_date":{"kind":"string","value":"2019-01-08"},"docket_number":{"kind":"string","value":"17-14830"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Pryor, Grant, Hull\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"Case: 17-14830 Date Filed: 01/08/2019 Page: 1 of 13\\n\\n\\n [PUBLISH]\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-14830\\n Non-Argument Calendar\\n ________________________\\n\\n D.C. Docket Nos. 0:16-cv-61410-DMM,\\n 0:08-cr-60090-DMM-1\\n\\n\\nCURTIS SOLOMON,\\n\\n Petitioner-Appellant,\\n\\n versus\\n\\nUNITED STATES OF AMERICA,\\n\\n Respondent-Appellee.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Florida\\n ________________________\\n\\n (January 8, 2019)\\n\\nBefore WILLIAM PRYOR, GRANT and HULL, Circuit Judges.\\n\\nPER CURIAM:\\n\\n Curtis Solomon appeals following the district court’s denial of his\\n\\nauthorized successive 28 U.S.C. § 2255 motion to vacate, set aside, or correct his\\n\\f Case: 17-14830 Date Filed: 01/08/2019 Page: 2 of 13\\n\\n\\nsentence. Back in 2017, the district court granted Solomon a certificate of\\n\\nappealability (“COA”) on the issue of whether the Supreme Court’s decision in\\n\\nJohnson v. United States, 576 U.S. __, 135 S. Ct. 2551 (2015), applies to 18 U.S.C.\\n\\n§ 924(c)(3)(B). Subsequently, the Supreme Court decided Sessions v. Dimaya,\\n\\n584 U.S. __, 138 S. Ct. 1204 (2018), and we held this appeal pending our en banc\\n\\ndecision in Ovalles v. United States (“Ovalles II”), 905 F.3d 1231 (11th Cir. 2018)\\n\\n(en banc). After review, we affirm.\\n\\n I. PROCEDURAL HISTORY\\n\\nA. Convictions, Direct Appeal, and First § 2255 Motion\\n\\n In 2008, a federal grand jury charged Solomon with: (1) one count of\\n\\nconspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a)\\n\\n(Count 1); (2) one count of conspiracy to use and carry a firearm during and in\\n\\nrelation to, and to possess a firearm in furtherance of, the Hobbs Act conspiracy\\n\\ncharged in Count 1, in violation of 18 U.S.C. § 924(c)(1)(A) and (o) (Count 2);\\n\\n(3) 17 substantive counts of Hobbs Act robbery, in violation of 18 U.S.C.\\n\\n§§ 1951(a) and 2 (Counts 3, 5, 7, 9 11, 13, 15, 17, 19, 21, 23, 25, 27, 29, 31, 33,\\n\\nand 35); and (4) 17 substantive counts of carrying a firearm during and in relation\\n\\nto a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1) and 2 (Counts 4, 6, 8,\\n\\n10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34, and 36). Each of the substantive\\n\\n§ 924(c) counts was predicated on the preceding substantive Hobbs Act robbery\\n\\n\\n 2\\n\\f Case: 17-14830 Date Filed: 01/08/2019 Page: 3 of 13\\n\\n\\ncount. For example, Count 3 charged Solomon with the December 11, 2007\\n\\nrobbery of a Papa John’s Pizza employee, and Count 4 correspondingly charged\\n\\nhim with carrying a firearm during and in relation to that robbery. All in all, the\\n\\nindictment charged that from December 2007 through late March 2008, Solomon\\n\\nused a firearm to rob a variety of restaurants, including several pizza places and\\n\\nChinese food restaurants and multiple Subway locations.\\n\\n Solomon pled not guilty and proceeded to trial. In 2009, following a 10-day\\n\\ntrial, the jury found Solomon guilty on all but two of the charged counts, Counts 23\\n\\nand 24. Thus, Solomon was convicted of: (1) one count of conspiracy to commit\\n\\nHobbs Act robbery; (2) one count of conspiracy to carry a firearm during and in\\n\\nrelation to, and to possess a firearm in furtherance of, the Hobbs Act conspiracy;\\n\\n(3) 16 substantive counts of Hobbs Act robbery; and (4) 16 substantive § 924(c)\\n\\ncounts.\\n\\n At Solomon’s sentencing in 2009, the district court imposed a total sentence\\n\\nof 4,641 months’ imprisonment. This sentence consisted of: (1) 57 months each as\\n\\nto Counts 1 (Hobbs Act conspiracy), 2 (§ 924(c) conspiracy), and 3, 5, 7, 9, 11, 13,\\n\\n15, 17, 19, 21, 25, 27, 29, 31, 33, and 35 (substantive Hobbs Act robberies), to be\\n\\nserved concurrently with each other; (2) a consecutive sentence of 84 months as to\\n\\nCount 4 (first substantive § 924(c) conviction); and (3) 300 months each as to\\n\\nCounts 6, 8, 10, 12, 14, 16, 18, 20, 22, 26, 28, 30, 32, 34, and 36 (additional\\n\\n\\n 3\\n\\f Case: 17-14830 Date Filed: 01/08/2019 Page: 4 of 13\\n\\n\\n§ 924(c) convictions), to be served consecutive to each other and to all of the other\\n\\ncounts.\\n\\n Solomon appealed, raising several conviction issues and challenging the\\n\\nimposition of consecutive sentences on his substantive § 924(c) convictions. See\\n\\nUnited States v. Lewis, 433 F. App’x 844, 845-46 (11th Cir. 2011) (unpublished).\\n\\nIn 2011, this Court affirmed Solomon’s convictions and sentences. Id. at 847. In\\n\\n2012, Solomon filed his first 28 U.S.C. § 2255 motion to vacate, set aside, or\\n\\ncorrect his sentence, raising two claims of ineffective assistance of trial counsel. In\\n\\n2013, the district court denied Solomon’s original § 2255 motion and denied him a\\n\\nCOA. In 2014, this Court also denied Solomon a COA.\\n\\nB. June 2016 Successive § 2255 Motion\\n\\n On June 10, 2016, Solomon filed an application for leave to file a successive\\n\\n§ 2255 motion with this Court. In relevant part, Solomon’s June 2016 application\\n\\nsought to challenge his § 924(c) convictions and sentences in light of the Supreme\\n\\nCourt’s decision in Johnson, which invalidated the residual clause of the Armed\\n\\nCareer Criminal Act (“ACCA”) as unconstitutionally vague.\\n\\n On July 8, 2016, this Court denied in part and granted in part Solomon’s\\n\\napplication. This Court denied Solomon’s application as to his substantive\\n\\n§ 924(c) convictions in Counts 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 26, 28, 30, 32, 34,\\n\\nand 36. Each of those convictions corresponded to a companion substantive Hobbs\\n\\n\\n 4\\n\\f Case: 17-14830 Date Filed: 01/08/2019 Page: 5 of 13\\n\\n\\nAct robbery conviction. Following our precedent in In re Saint Fleur, 824 F.3d\\n\\n1337 (11th Cir. 2016), this Court held that substantive Hobbs Act robbery is a\\n\\ncrime of violence under § 924(c)(3)(A)’s elements clause. 1\\n\\n This Court, however, granted Solomon’s application as to his § 924(c)\\n\\nconspiracy conviction in Count 2 because that conviction corresponded to his\\n\\nHobbs Act conspiracy conviction in Count 1. This Court explained that “an\\n\\napplicant has made a prima facie case, for purposes of second or successive\\n\\nreview, when seeking to challenge a conviction for conspiracy to commit Hobbs\\n\\nAct robbery based on an argument that such a conviction meets only the residual\\n\\nclause of § 924(c).” (citing In re Pinder, 824 F.3d 977 (11th Cir. 2016).\\n\\nAccordingly, as a threshold determination, this Court granted in part Solomon’s\\n\\napplication to file a successive § 2255 motion, but only with respect to his\\n\\nchallenge to his § 924(c) conspiracy-related conviction in Count 2.\\n\\n\\n\\n\\n 1\\n Subsequent to Saint Fleur, five other circuits have held that Hobbs Act robbery qualifies\\nas a crime of violence under § 924(c)(3)(A)’s elements clause. See United States v. Barrett, 903\\nF.3d 166, 174 (2d Cir. 2018), pet. for cert. filed, No. 18-6985 (U.S. Dec. 11, 2018); United States\\nv. Melgar-Cabrera, 892 F.3d 1053, 1064-66 (10th Cir.), cert. denied, 2018 WL 5017618 (Nov.\\n13, 2018); Diaz v. United States, 863 F.3d 781, 783-84 (8th Cir. 2017); United States v. Gooch,\\n850 F.3d 285, 291-92 (6th Cir.), cert. denied, 137 S. Ct. 2230 (2017); United States v. Rivera,\\n847 F.3d 847, 848-49 (7th Cir.), cert. denied, 137 S. Ct 2228 (2017). This Court also held again\\nin a direct appeal case that Hobbs Act robbery qualifies as a crime of violence under\\n§ 924(c)(3)(A). United States v. St. Hubert, 909 F.3d 335, 345-51 (11th Cir. 2018).\\n 5\\n\\f Case: 17-14830 Date Filed: 01/08/2019 Page: 6 of 13\\n\\n\\nC. District Court Proceedings on Successive § 2255 Motion\\n\\n Following this Court’s order, Solomon’s case was returned to the district\\n\\ncourt for adjudication of his authorized successive § 2255 motion. Solomon was\\n\\nrepresented by counsel in the district court. In July 2017, a magistrate judge issued\\n\\na report and recommendation (“R&R”) recommending that Solomon’s successive\\n\\n§ 2255 motion be denied. As to the merits of Solomon’s claim, the magistrate\\n\\njudge determined, based on our then-recent decision in Ovalles v. United States\\n\\n(“Ovalles I”), 861 F.3d 1257 (11th Cir. 2017), vacated on reh’g en banc, 905 F.3d\\n\\n1231 (11th Cir. 2018), that Johnson’s vagueness holding did not apply to or\\n\\ninvalidate § 924(c)(3)(B)’s residual clause. The magistrate judge noted that\\n\\nSolomon did not dispute that his Hobbs Act conspiracy conviction satisfied\\n\\n§ 924(c)(3)(B)’s residual clause, but rather argued only that the residual clause was\\n\\nunconstitutional. Because that argument lacked merit in light of Ovalles I, the\\n\\nmagistrate judge concluded that Solomon’s successive § 2255 motion should be\\n\\ndenied.2\\n\\n Solomon objected to the R&R. Solomon argued that the district court\\n\\nshould not rely on Ovalles I because (1) this Court had withheld the mandate in\\n\\n\\n\\n 2\\n In the interest of completeness, the magistrate judge went on to address whether, if\\nJohnson did apply, Hobbs Act conspiracy would qualify under § 924(c)(3)(A)’s elements clause.\\nThe magistrate judge determined that it would not. The district court, however, did not adopt\\nthat portion of the magistrate judge’s R&R, as it was unnecessary to the resolution of Solomon’s\\nsuccessive § 2255 motion.\\n 6\\n\\f Case: 17-14830 Date Filed: 01/08/2019 Page: 7 of 13\\n\\n\\nthat case, indicating that it might be reheard en banc, and (2) Sessions v. Dimaya\\n\\nwas then pending in the Supreme Court and might impact the reasoning applied in\\n\\nOvalles I to distinguish § 924(c) from the ACCA. Solomon also contended that,\\n\\neven if Ovalles I correctly held that § 924(c)(3)(B)’s residual clause was\\n\\nconstitutional, his § 924(c) conspiracy conviction was still invalid because Hobbs\\n\\nAct conspiracy did not qualify as a crime of violence under § 924(c)(3)(B)’s\\n\\nresidual clause. Specifically, Solomon argued that any risk of injury that may\\n\\noccur in the context of a Hobbs Act conspiracy “arises from the object of the\\n\\nconspiracy, which is a separate and distinct offense that is temporally removed\\n\\nfrom the scope-of-the-risk analysis under § 924(c)(3)(B).” In other words,\\n\\nSolomon contended that the Hobbs Act conspiracy itself does not require proof of\\n\\nany overt act and thus a conspiracy poses no risk of injury.\\n\\n The government responded that Ovalles I was binding precedent regardless\\n\\nof whether the mandate had issued and should be applied in Solomon’s case. The\\n\\ngovernment further asserted that Solomon’s alternative argument—that Hobbs Act\\n\\nconspiracy did not qualify under the residual clause—was not cognizable in the\\n\\ncontext of a successive § 2255 motion. The government explained that this\\n\\nCourt’s grant of leave for Solomon to file a successive § 2255 motion was limited\\n\\nto his claim that his § 924(c) conviction in Count 2 was invalid in light of Johnson\\n\\nand did not encompass other challenges to the validity of that conviction.\\n\\n\\n 7\\n\\f Case: 17-14830 Date Filed: 01/08/2019 Page: 8 of 13\\n\\n\\n Over Solomon’s objections, the district court adopted the R&R’s\\n\\nrecommendation that Solomon’s motion be denied “because Johnson does not\\n\\napply to § 924(c)(3)(B).” However, the district court granted Solomon a COA “as\\n\\nto whether Johnson applies to § 924(c)(3)(B).” Solomon now appeals.\\n\\n II. LEGAL BACKGROUND\\n\\n The legal landscape in this case has developed since the district court ruled\\n\\non Solomon’s authorized successive § 2255 motion. We therefore detail those\\n\\nlegal developments below before turning to the merits of Solomon’s case.\\n\\n Following the Supreme Court’s decision in Johnson and this Court’s\\n\\ndecision in Ovalles I, the Supreme Court decided Sessions v. Dimaya. In Dimaya,\\n\\nthe Supreme Court addressed whether Johnson’s vagueness holding as to the\\n\\nACCA’s residual clause applied to and invalidated the residual clause in 18 U.S.C.\\n\\n§ 16(b)’s crime of violence definition. 584 U.S. at __, 138 S. Ct. at 1210-12.\\n\\nSection 16(b) defined a crime of violence as “any other offense that is a felony and\\n\\nthat, by its nature, involves a substantial risk that physical force against the person\\n\\nor property of another may be used in the course of committing the offense.” 18\\n\\nU.S.C. § 16(b). Strictly applying the ordinary case or categorical approach, the\\n\\nSupreme Court in Dimaya held that § 16(b)’s residual clause, as incorporated into\\n\\nthe Immigration and Nationality Act, like the ACCA’s residual clause in Johnson,\\n\\n\\n\\n\\n 8\\n\\f Case: 17-14830 Date Filed: 01/08/2019 Page: 9 of 13\\n\\n\\nwas void for vagueness and thus unconstitutional. Id. at 1210-11, 1213-16, 1218-\\n\\n23.\\n\\n After the Supreme Court issued its decision in Dimaya, this Court vacated\\n\\nthe opinion in Ovalles I and granted rehearing en banc. Ovalles v. United States,\\n\\n889 F.3d 1259 (11th Cir. 2018). On rehearing en banc, this Court expressly\\n\\nconsidered the effect, if any, of Johnson and Dimaya on § 924(c)(3)(B)’s residual\\n\\nclause which, like § 16(b), defines a crime of violence as “an offense that is a\\n\\nfelony” and that “by its nature, involves a substantial risk that physical force\\n\\nagainst the person or property of another may be used in the course of committing\\n\\nthe offense.” Ovalles II, 905 F.3d at 1233-34, 1236-40; 18 U.S.C. § 924(c)(3)(B).\\n\\n In Ovalles II, the en banc Court determined that § 924(c)(3)(B)’s residual\\n\\nclause can plausibly be interpreted to incorporate either a categorical or a conduct-\\n\\nbased approach. See Ovalles II, 905 F.3d at 1251. The en banc Court explained\\n\\nthat, for the reasons outlined in Johnson and Dimaya, application of the categorical\\n\\napproach would render § 924(c)(3)(B)’s residual clause unconstitutionally vague.\\n\\nId. at 1233, 1239-40. By contrast, the en banc Court explained, if § 924(c)(3)(B)’s\\n\\nresidual clause is interpreted to incorporate the conduct-based approach, it is not\\n\\nunconstitutionally vague. Id. at 1233-34, 1240. As such, the en banc Court\\n\\ndetermined that the canon of constitutional doubt required us to adopt the statute-\\n\\nsaving conduct-based interpretation. See id. at 1240, 1251-52. Given that the\\n\\n\\n 9\\n\\f Case: 17-14830 Date Filed: 01/08/2019 Page: 10 of 13\\n\\n\\nconduct-based approach applied to § 924(c)(3)(B)’s residual clause, the en banc\\n\\nCourt held that the residual clause was not unconstitutionally vague in light of\\n\\nJohnson and Dimaya. Id. at 1252.\\n\\n Relying on Ovalles II, this Court has since held that a federal prisoner’s\\n\\nproposed vagueness challenge to § 924(c)(3)(B)’s residual clause under Johnson\\n\\nand Dimaya could not satisfy the statutory requirements of § 2255(h). In re\\n\\nGarrett, 908 F.3d 686, 687-89 (11th Cir. 2018). The Garrett Court explained that,\\n\\ngiven Ovalles II’s holding that § 924(c)(3)(B) is not unconstitutionally vague,\\n\\n“neither Johnson nor Dimaya supplies any ‘rule of constitutional law’—‘new’ or\\n\\nold, ‘retroactive’ or nonretroactive, ‘previously unavailable’ or otherwise—that\\n\\ncan support a vagueness-based challenge to the residual clause of section 924(c).”\\n\\nId. at 689. This Court added that, even though Garrett was sentenced prior to\\n\\nOvalles II, during a time when this Court interpreted § 924(c) to require a\\n\\ncategorical approach, construing his claim to challenge the use of the categorical\\n\\napproach would “make no difference” because the substitution of one statutory\\n\\ninterpretation for another did not amount to a new rule of constitutional law. Id.\\n\\n III. DISCUSSION\\n\\n As a preliminary matter, we note that when this Court authorizes a federal\\n\\nprisoner to file a successive § 2255 motion in the district court, that authorization is\\n\\na threshold determination and narrowly circumscribed. The successive motion\\n\\n\\n 10\\n\\f Case: 17-14830 Date Filed: 01/08/2019 Page: 11 of 13\\n\\n\\ndoes not stand in the place of a first § 2255 motion, allowing the movant to raise\\n\\nany claim that would have been cognizable in an original § 2255 proceeding.\\n\\nRather, the claims raised in the successive § 2255 motion must still meet the\\n\\nrequirements of § 2255(h). See Randolph v. United States, 904 F.3d 962, 964\\n\\n(11th Cir. 2018). That is, “[o]nce we have authorized a movant to file a second or\\n\\nsuccessive § 2255 motion, the district court has jurisdiction to determine for itself\\n\\nif the motion relies on ‘a new rule of constitutional law, made retroactive to cases\\n\\non collateral review by the Supreme Court, that was previously unavailable.’” Id.\\n\\n(quoting 28 U.S.C. § 2255(h)(2)). “If the motion meets those requirements, the\\n\\ndistrict court has jurisdiction to decide whether any relief is due under the motion;\\n\\nif the motion does not meet the § 2255(h) requirements, the court lacks jurisdiction\\n\\nto decide whether the motion has any merit.” Id.\\n\\n Furthermore, in making the § 2255(h) determination, the district court owes\\n\\nno deference to our order authorizing the movant to file a successive § 2255\\n\\nmotion. Id. at 965. Our threshold determination that the movant made a prima\\n\\nfacie showing that he satisfied § 2255(h)’s criteria does not conclusively resolve\\n\\nthe issue. In re Moore, 830 F.3d 1268, 1271 (11th Cir. 2016); see also Jordan v.\\n\\nSec’y, Dep’t of Corrs., 485 F.3d 1351, 1357-58 (11th Cir. 2007). Instead, “[w]hen\\n\\nwe issue an order authorizing a habeas petitioner to file a second or successive\\n\\n§ 2255 motion, the district court is to decide the § 2255(h) issues fresh, or in the\\n\\n\\n 11\\n\\f Case: 17-14830 Date Filed: 01/08/2019 Page: 12 of 13\\n\\n\\nlegal vernacular, de novo.” Randolph, 904 F.3d at 965 (quotation marks omitted).\\n\\nOur “first hard look” at whether the § 2255(h) requirements have been met then\\n\\ncomes, if at all, on appeal from the district court’s decision. Moore, 830 F.3d at\\n\\n1271 (quoting Jordan, 485 F.3d at 1358).\\n\\n Here, the district court denied Solomon’s authorized successive § 2255\\n\\nmotion because it concluded, based on our then-applicable precedent in Ovalles I,\\n\\nthat Johnson’s vagueness holding did not apply to or invalidate § 924(c)(3)(B)’s\\n\\nresidual clause. The district court framed this as a determination on the merits of\\n\\nSolomon’s successive § 2255 motion. In essence, however, in concluding that\\n\\nJohnson did not apply to § 924(c)(3)(B), the district court effectively determined\\n\\nthat Solomon’s successive § 2255 motion failed to satisfy § 2255(h)’s requirements\\n\\nbecause, in light of Ovalles I, Johnson did not supply a new rule of constitutional\\n\\nlaw that could support Solomon’s challenge to his § 924(c) conviction and\\n\\nsentence in Count 2. See Garrett, 908 F.3d at 689. Though Ovalles I has since\\n\\nbeen vacated, the district court’s conclusion remains correct in light of our en banc\\n\\ndecision in Ovalles II. As this Court explained in Garrett, given Ovalles II’s\\n\\nholding that § 924(c)(3)(B)’s residual clause is not unconstitutionally vague, a\\n\\nJohnson- or Dimaya-based vagueness challenge to § 924(c)’s residual clause\\n\\ncannot satisfy § 2255(h)(2)’s “new rule of constitutional law” requirement. Id.\\n\\nLikewise, any challenge Solomon might raise to the district court’s use of the\\n\\n\\n 12\\n\\f Case: 17-14830 Date Filed: 01/08/2019 Page: 13 of 13\\n\\n\\ncategorical approach and its application of § 924(c)(3)(B)’s residual clause in his\\n\\ncase would not satisfy § 2255(h) either, as such a claim would be statutory in\\n\\nnature. See id. Ovalles II and Garrett foreclose even the most generous reading of\\n\\nSolomon’s challenges, both constitutional and statutory, to his § 924(c) conviction\\n\\nin Count 2. See United States v. St. Hubert, 909 F.3d 335, 346 (11th Cir. 2018)\\n\\n(“[L]aw established in published three-judge orders issued pursuant to 28 U.S.C.\\n\\n§ 2244(b) in the context of applications for leave to file second or successive\\n\\n§ 2255 motions is binding precedent on all subsequent panels of this Court,\\n\\nincluding those reviewing direct appeals and collateral attacks . . . .”).\\n\\n IV. CONCLUSION\\n\\n For the foregoing reasons, the district court did not err in denying Solomon’s\\n\\nauthorized successive § 2255 motion, and we affirm.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 13\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4356922/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"PRYOR"},"judge2":{"kind":"string","value":"GRANT"},"judge3":{"kind":"string","value":"HULL"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4579669/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Curtis SOLOMON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-01-08\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-14830 Date Filed: 01/08/2019 Page: 1 of 13\n\n\n [PUBLISH]\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-14830\n Non-Argument Calendar\n ________________________\n\n D.C. Docket Nos. 0:16-cv-61410-DMM,\n 0:08-cr-60090-DMM-1\n\n\nCURTIS SOLOMON,\n\n Petitioner-Appellant,\n\n versus\n\nUNITED STATES OF AMERICA,\n\n Respondent-Appellee.\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Florida\n ________________________\n\n (January 8, 2019)\n\nBefore WILLIAM PRYOR, GRANT and HULL, Circuit Judges.\n\nPER CURIAM:\n\n Curtis Solomon appeals following the district court’s denial of his\n\nauthorized successive 28 U.S.C. § 2255 motion to vacate, set aside, or correct his\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 2 of 13\n\n\nsentence. Back in 2017, the district court granted Solomon a certificate of\n\nappealability (“COA”) on the issue of whether the Supreme Court’s decision in\n\nJohnson v. United States, 576 U.S. __, 135 S. Ct. 2551 (2015), applies to 18 U.S.C.\n\n§ 924(c)(3)(B). Subsequently, the Supreme Court decided Sessions v. Dimaya,\n\n584 U.S. __, 138 S. Ct. 1204 (2018), and we held this appeal pending our en banc\n\ndecision in Ovalles v. United States (“Ovalles II”), 905 F.3d 1231 (11th Cir. 2018)\n\n(en banc). After review, we affirm.\n\n I. PROCEDURAL HISTORY\n\nA. Convictions, Direct Appeal, and First § 2255 Motion\n\n In 2008, a federal grand jury charged Solomon with: (1) one count of\n\nconspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a)\n\n(Count 1); (2) one count of conspiracy to use and carry a firearm during and in\n\nrelation to, and to possess a firearm in furtherance of, the Hobbs Act conspiracy\n\ncharged in Count 1, in violation of 18 U.S.C. § 924(c)(1)(A) and (o) (Count 2);\n\n(3) 17 substantive counts of Hobbs Act robbery, in violation of 18 U.S.C.\n\n§§ 1951(a) and 2 (Counts 3, 5, 7, 9 11, 13, 15, 17, 19, 21, 23, 25, 27, 29, 31, 33,\n\nand 35); and (4) 17 substantive counts of carrying a firearm during and in relation\n\nto a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1) and 2 (Counts 4, 6, 8,\n\n10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34, and 36). Each of the substantive\n\n§ 924(c) counts was predicated on the preceding substantive Hobbs Act robbery\n\n\n 2\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 3 of 13\n\n\ncount. For example, Count 3 charged Solomon with the December 11, 2007\n\nrobbery of a Papa John’s Pizza employee, and Count 4 correspondingly charged\n\nhim with carrying a firearm during and in relation to that robbery. All in all, the\n\nindictment charged that from December 2007 through late March 2008, Solomon\n\nused a firearm to rob a variety of restaurants, including several pizza places and\n\nChinese food restaurants and multiple Subway locations.\n\n Solomon pled not guilty and proceeded to trial. In 2009, following a 10-day\n\ntrial, the jury found Solomon guilty on all but two of the charged counts, Counts 23\n\nand 24. Thus, Solomon was convicted of: (1) one count of conspiracy to commit\n\nHobbs Act robbery; (2) one count of conspiracy to carry a firearm during and in\n\nrelation to, and to possess a firearm in furtherance of, the Hobbs Act conspiracy;\n\n(3) 16 substantive counts of Hobbs Act robbery; and (4) 16 substantive § 924(c)\n\ncounts.\n\n At Solomon’s sentencing in 2009, the district court imposed a total sentence\n\nof 4,641 months’ imprisonment. This sentence consisted of: (1) 57 months each as\n\nto Counts 1 (Hobbs Act conspiracy), 2 (§ 924(c) conspiracy), and 3, 5, 7, 9, 11, 13,\n\n15, 17, 19, 21, 25, 27, 29, 31, 33, and 35 (substantive Hobbs Act robberies), to be\n\nserved concurrently with each other; (2) a consecutive sentence of 84 months as to\n\nCount 4 (first substantive § 924(c) conviction); and (3) 300 months each as to\n\nCounts 6, 8, 10, 12, 14, 16, 18, 20, 22, 26, 28, 30, 32, 34, and 36 (additional\n\n\n 3\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 4 of 13\n\n\n§ 924(c) convictions), to be served consecutive to each other and to all of the other\n\ncounts.\n\n Solomon appealed, raising several conviction issues and challenging the\n\nimposition of consecutive sentences on his substantive § 924(c) convictions. See\n\nUnited States v. Lewis, 433 F. App’x 844, 845-46 (11th Cir. 2011) (unpublished).\n\nIn 2011, this Court affirmed Solomon’s convictions and sentences. Id. at 847. In\n\n2012, Solomon filed his first 28 U.S.C. § 2255 motion to vacate, set aside, or\n\ncorrect his sentence, raising two claims of ineffective assistance of trial counsel. In\n\n2013, the district court denied Solomon’s original § 2255 motion and denied him a\n\nCOA. In 2014, this Court also denied Solomon a COA.\n\nB. June 2016 Successive § 2255 Motion\n\n On June 10, 2016, Solomon filed an application for leave to file a successive\n\n§ 2255 motion with this Court. In relevant part, Solomon’s June 2016 application\n\nsought to challenge his § 924(c) convictions and sentences in light of the Supreme\n\nCourt’s decision in Johnson, which invalidated the residual clause of the Armed\n\nCareer Criminal Act (“ACCA”) as unconstitutionally vague.\n\n On July 8, 2016, this Court denied in part and granted in part Solomon’s\n\napplication. This Court denied Solomon’s application as to his substantive\n\n§ 924(c) convictions in Counts 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 26, 28, 30, 32, 34,\n\nand 36. Each of those convictions corresponded to a companion substantive Hobbs\n\n\n 4\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 5 of 13\n\n\nAct robbery conviction. Following our precedent in In re Saint Fleur, 824 F.3d\n\n1337 (11th Cir. 2016), this Court held that substantive Hobbs Act robbery is a\n\ncrime of violence under § 924(c)(3)(A)’s elements clause. 1\n\n This Court, however, granted Solomon’s application as to his § 924(c)\n\nconspiracy conviction in Count 2 because that conviction corresponded to his\n\nHobbs Act conspiracy conviction in Count 1. This Court explained that “an\n\napplicant has made a prima facie case, for purposes of second or successive\n\nreview, when seeking to challenge a conviction for conspiracy to commit Hobbs\n\nAct robbery based on an argument that such a conviction meets only the residual\n\nclause of § 924(c).” (citing In re Pinder, 824 F.3d 977 (11th Cir. 2016).\n\nAccordingly, as a threshold determination, this Court granted in part Solomon’s\n\napplication to file a successive § 2255 motion, but only with respect to his\n\nchallenge to his § 924(c) conspiracy-related conviction in Count 2.\n\n\n\n\n 1\n Subsequent to Saint Fleur, five other circuits have held that Hobbs Act robbery qualifies\nas a crime of violence under § 924(c)(3)(A)’s elements clause. See United States v. Barrett, 903\nF.3d 166, 174 (2d Cir. 2018), pet. for cert. filed, No. 18-6985 (U.S. Dec. 11, 2018); United States\nv. Melgar-Cabrera, 892 F.3d 1053, 1064-66 (10th Cir.), cert. denied, 2018 WL 5017618 (Nov.\n13, 2018); Diaz v. United States, 863 F.3d 781, 783-84 (8th Cir. 2017); United States v. Gooch,\n850 F.3d 285, 291-92 (6th Cir.), cert. denied, 137 S. Ct. 2230 (2017); United States v. Rivera,\n847 F.3d 847, 848-49 (7th Cir.), cert. denied, 137 S. Ct 2228 (2017). This Court also held again\nin a direct appeal case that Hobbs Act robbery qualifies as a crime of violence under\n§ 924(c)(3)(A). United States v. St. Hubert, 909 F.3d 335, 345-51 (11th Cir. 2018).\n 5\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 6 of 13\n\n\nC. District Court Proceedings on Successive § 2255 Motion\n\n Following this Court’s order, Solomon’s case was returned to the district\n\ncourt for adjudication of his authorized successive § 2255 motion. Solomon was\n\nrepresented by counsel in the district court. In July 2017, a magistrate judge issued\n\na report and recommendation (“R&R”) recommending that Solomon’s successive\n\n§ 2255 motion be denied. As to the merits of Solomon’s claim, the magistrate\n\njudge determined, based on our then-recent decision in Ovalles v. United States\n\n(“Ovalles I”), 861 F.3d 1257 (11th Cir. 2017), vacated on reh’g en banc, 905 F.3d\n\n1231 (11th Cir. 2018), that Johnson’s vagueness holding did not apply to or\n\ninvalidate § 924(c)(3)(B)’s residual clause. The magistrate judge noted that\n\nSolomon did not dispute that his Hobbs Act conspiracy conviction satisfied\n\n§ 924(c)(3)(B)’s residual clause, but rather argued only that the residual clause was\n\nunconstitutional. Because that argument lacked merit in light of Ovalles I, the\n\nmagistrate judge concluded that Solomon’s successive § 2255 motion should be\n\ndenied.2\n\n Solomon objected to the R&R. Solomon argued that the district court\n\nshould not rely on Ovalles I because (1) this Court had withheld the mandate in\n\n\n\n 2\n In the interest of completeness, the magistrate judge went on to address whether, if\nJohnson did apply, Hobbs Act conspiracy would qualify under § 924(c)(3)(A)’s elements clause.\nThe magistrate judge determined that it would not. The district court, however, did not adopt\nthat portion of the magistrate judge’s R&R, as it was unnecessary to the resolution of Solomon’s\nsuccessive § 2255 motion.\n 6\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 7 of 13\n\n\nthat case, indicating that it might be reheard en banc, and (2) Sessions v. Dimaya\n\nwas then pending in the Supreme Court and might impact the reasoning applied in\n\nOvalles I to distinguish § 924(c) from the ACCA. Solomon also contended that,\n\neven if Ovalles I correctly held that § 924(c)(3)(B)’s residual clause was\n\nconstitutional, his § 924(c) conspiracy conviction was still invalid because Hobbs\n\nAct conspiracy did not qualify as a crime of violence under § 924(c)(3)(B)’s\n\nresidual clause. Specifically, Solomon argued that any risk of injury that may\n\noccur in the context of a Hobbs Act conspiracy “arises from the object of the\n\nconspiracy, which is a separate and distinct offense that is temporally removed\n\nfrom the scope-of-the-risk analysis under § 924(c)(3)(B).” In other words,\n\nSolomon contended that the Hobbs Act conspiracy itself does not require proof of\n\nany overt act and thus a conspiracy poses no risk of injury.\n\n The government responded that Ovalles I was binding precedent regardless\n\nof whether the mandate had issued and should be applied in Solomon’s case. The\n\ngovernment further asserted that Solomon’s alternative argument—that Hobbs Act\n\nconspiracy did not qualify under the residual clause—was not cognizable in the\n\ncontext of a successive § 2255 motion. The government explained that this\n\nCourt’s grant of leave for Solomon to file a successive § 2255 motion was limited\n\nto his claim that his § 924(c) conviction in Count 2 was invalid in light of Johnson\n\nand did not encompass other challenges to the validity of that conviction.\n\n\n 7\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 8 of 13\n\n\n Over Solomon’s objections, the district court adopted the R&R’s\n\nrecommendation that Solomon’s motion be denied “because Johnson does not\n\napply to § 924(c)(3)(B).” However, the district court granted Solomon a COA “as\n\nto whether Johnson applies to § 924(c)(3)(B).” Solomon now appeals.\n\n II. LEGAL BACKGROUND\n\n The legal landscape in this case has developed since the district court ruled\n\non Solomon’s authorized successive § 2255 motion. We therefore detail those\n\nlegal developments below before turning to the merits of Solomon’s case.\n\n Following the Supreme Court’s decision in Johnson and this Court’s\n\ndecision in Ovalles I, the Supreme Court decided Sessions v. Dimaya. In Dimaya,\n\nthe Supreme Court addressed whether Johnson’s vagueness holding as to the\n\nACCA’s residual clause applied to and invalidated the residual clause in 18 U.S.C.\n\n§ 16(b)’s crime of violence definition. 584 U.S. at __, 138 S. Ct. at 1210-12.\n\nSection 16(b) defined a crime of violence as “any other offense that is a felony and\n\nthat, by its nature, involves a substantial risk that physical force against the person\n\nor property of another may be used in the course of committing the offense.” 18\n\nU.S.C. § 16(b). Strictly applying the ordinary case or categorical approach, the\n\nSupreme Court in Dimaya held that § 16(b)’s residual clause, as incorporated into\n\nthe Immigration and Nationality Act, like the ACCA’s residual clause in Johnson,\n\n\n\n\n 8\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 9 of 13\n\n\nwas void for vagueness and thus unconstitutional. Id. at 1210-11, 1213-16, 1218-\n\n23.\n\n After the Supreme Court issued its decision in Dimaya, this Court vacated\n\nthe opinion in Ovalles I and granted rehearing en banc. Ovalles v. United States,\n\n889 F.3d 1259 (11th Cir. 2018). On rehearing en banc, this Court expressly\n\nconsidered the effect, if any, of Johnson and Dimaya on § 924(c)(3)(B)’s residual\n\nclause which, like § 16(b), defines a crime of violence as “an offense that is a\n\nfelony” and that “by its nature, involves a substantial risk that physical force\n\nagainst the person or property of another may be used in the course of committing\n\nthe offense.” Ovalles II, 905 F.3d at 1233-34, 1236-40; 18 U.S.C. § 924(c)(3)(B).\n\n In Ovalles II, the en banc Court determined that § 924(c)(3)(B)’s residual\n\nclause can plausibly be interpreted to incorporate either a categorical or a conduct-\n\nbased approach. See Ovalles II, 905 F.3d at 1251. The en banc Court explained\n\nthat, for the reasons outlined in Johnson and Dimaya, application of the categorical\n\napproach would render § 924(c)(3)(B)’s residual clause unconstitutionally vague.\n\nId. at 1233, 1239-40. By contrast, the en banc Court explained, if § 924(c)(3)(B)’s\n\nresidual clause is interpreted to incorporate the conduct-based approach, it is not\n\nunconstitutionally vague. Id. at 1233-34, 1240. As such, the en banc Court\n\ndetermined that the canon of constitutional doubt required us to adopt the statute-\n\nsaving conduct-based interpretation. See id. at 1240, 1251-52. Given that the\n\n\n 9\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 10 of 13\n\n\nconduct-based approach applied to § 924(c)(3)(B)’s residual clause, the en banc\n\nCourt held that the residual clause was not unconstitutionally vague in light of\n\nJohnson and Dimaya. Id. at 1252.\n\n Relying on Ovalles II, this Court has since held that a federal prisoner’s\n\nproposed vagueness challenge to § 924(c)(3)(B)’s residual clause under Johnson\n\nand Dimaya could not satisfy the statutory requirements of § 2255(h). In re\n\nGarrett, 908 F.3d 686, 687-89 (11th Cir. 2018). The Garrett Court explained that,\n\ngiven Ovalles II’s holding that § 924(c)(3)(B) is not unconstitutionally vague,\n\n“neither Johnson nor Dimaya supplies any ‘rule of constitutional law’—‘new’ or\n\nold, ‘retroactive’ or nonretroactive, ‘previously unavailable’ or otherwise—that\n\ncan support a vagueness-based challenge to the residual clause of section 924(c).”\n\nId. at 689. This Court added that, even though Garrett was sentenced prior to\n\nOvalles II, during a time when this Court interpreted § 924(c) to require a\n\ncategorical approach, construing his claim to challenge the use of the categorical\n\napproach would “make no difference” because the substitution of one statutory\n\ninterpretation for another did not amount to a new rule of constitutional law. Id.\n\n III. DISCUSSION\n\n As a preliminary matter, we note that when this Court authorizes a federal\n\nprisoner to file a successive § 2255 motion in the district court, that authorization is\n\na threshold determination and narrowly circumscribed. The successive motion\n\n\n 10\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 11 of 13\n\n\ndoes not stand in the place of a first § 2255 motion, allowing the movant to raise\n\nany claim that would have been cognizable in an original § 2255 proceeding.\n\nRather, the claims raised in the successive § 2255 motion must still meet the\n\nrequirements of § 2255(h). See Randolph v. United States, 904 F.3d 962, 964\n\n(11th Cir. 2018). That is, “[o]nce we have authorized a movant to file a second or\n\nsuccessive § 2255 motion, the district court has jurisdiction to determine for itself\n\nif the motion relies on ‘a new rule of constitutional law, made retroactive to cases\n\non collateral review by the Supreme Court, that was previously unavailable.’” Id.\n\n(quoting 28 U.S.C. § 2255(h)(2)). “If the motion meets those requirements, the\n\ndistrict court has jurisdiction to decide whether any relief is due under the motion;\n\nif the motion does not meet the § 2255(h) requirements, the court lacks jurisdiction\n\nto decide whether the motion has any merit.” Id.\n\n Furthermore, in making the § 2255(h) determination, the district court owes\n\nno deference to our order authorizing the movant to file a successive § 2255\n\nmotion. Id. at 965. Our threshold determination that the movant made a prima\n\nfacie showing that he satisfied § 2255(h)’s criteria does not conclusively resolve\n\nthe issue. In re Moore, 830 F.3d 1268, 1271 (11th Cir. 2016); see also Jordan v.\n\nSec’y, Dep’t of Corrs., 485 F.3d 1351, 1357-58 (11th Cir. 2007). Instead, “[w]hen\n\nwe issue an order authorizing a habeas petitioner to file a second or successive\n\n§ 2255 motion, the district court is to decide the § 2255(h) issues fresh, or in the\n\n\n 11\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 12 of 13\n\n\nlegal vernacular, de novo.” Randolph, 904 F.3d at 965 (quotation marks omitted).\n\nOur “first hard look” at whether the § 2255(h) requirements have been met then\n\ncomes, if at all, on appeal from the district court’s decision. Moore, 830 F.3d at\n\n1271 (quoting Jordan, 485 F.3d at 1358).\n\n Here, the district court denied Solomon’s authorized successive § 2255\n\nmotion because it concluded, based on our then-applicable precedent in Ovalles I,\n\nthat Johnson’s vagueness holding did not apply to or invalidate § 924(c)(3)(B)’s\n\nresidual clause. The district court framed this as a determination on the merits of\n\nSolomon’s successive § 2255 motion. In essence, however, in concluding that\n\nJohnson did not apply to § 924(c)(3)(B), the district court effectively determined\n\nthat Solomon’s successive § 2255 motion failed to satisfy § 2255(h)’s requirements\n\nbecause, in light of Ovalles I, Johnson did not supply a new rule of constitutional\n\nlaw that could support Solomon’s challenge to his § 924(c) conviction and\n\nsentence in Count 2. See Garrett, 908 F.3d at 689. Though Ovalles I has since\n\nbeen vacated, the district court’s conclusion remains correct in light of our en banc\n\ndecision in Ovalles II. As this Court explained in Garrett, given Ovalles II’s\n\nholding that § 924(c)(3)(B)’s residual clause is not unconstitutionally vague, a\n\nJohnson- or Dimaya-based vagueness challenge to § 924(c)’s residual clause\n\ncannot satisfy § 2255(h)(2)’s “new rule of constitutional law” requirement. Id.\n\nLikewise, any challenge Solomon might raise to the district court’s use of the\n\n\n 12\n\f Case: 17-14830 Date Filed: 01/08/2019 Page: 13 of 13\n\n\ncategorical approach and its application of § 924(c)(3)(B)’s residual clause in his\n\ncase would not satisfy § 2255(h) either, as such a claim would be statutory in\n\nnature. See id. Ovalles II and Garrett foreclose even the most generous reading of\n\nSolomon’s challenges, both constitutional and statutory, to his § 924(c) conviction\n\nin Count 2. See United States v. St. Hubert, 909 F.3d 335, 346 (11th Cir. 2018)\n\n(“[L]aw established in published three-judge orders issued pursuant to 28 U.S.C.\n\n§ 2244(b) in the context of applications for leave to file second or successive\n\n§ 2255 motions is binding precedent on all subsequent panels of this Court,\n\nincluding those reviewing direct appeals and collateral attacks . . . .”).\n\n IV. CONCLUSION\n\n For the foregoing reasons, the district court did not err in denying Solomon’s\n\nauthorized successive § 2255 motion, and we affirm.\n\n AFFIRMED.\n\n\n\n\n 13\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Curtis SOLOMON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-01-08\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-14830 Date Filed: 01/08/2019 Page: 1 of 13\\n\\n\\n [PUBLISH]\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-14830\\n Non-Argument Calendar\\n ________________________\\n\\n D.C. Docket Nos. 0:16-cv-61410-DMM,\\n 0:08-cr-60090-DMM-1\\n\\n\\nCURTIS SOLOMON,\\n\\n Petitioner-Appellant,\\n\\n versus\\n\\nUNITED STATES OF AMERICA,\\n\\n Respondent-Appellee.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Florida\\n ________________________\\n\\n (January 8, 2019)\\n\\nBefore WILLIAM PRYOR, GRANT and HULL, Circuit Judges.\\n\\nPER CURIAM:\\n\\n Curtis Solomon appeals following the district court’s denial of his\\n\\nauthorized successive 28 U.S.C. § 2255 motion to vacate, set aside, or correct his\\n\\f Case: 17-14830 Date Filed: 01/08/2019 Page: 2 of 13\\n\\n\\nsentence. Back in 2017, the district court granted Solomon a certificate of\\n\\nappealability (“COA”) on the issue of whether the Supreme Court’s decision in\\n\\nJohnson v. United States, 576 U.S. __, 135 S. Ct. 2551 (2015), applies to 18 U.S.C.\\n\\n§ 924(c)(3)(B). Subsequently, the Supreme Court decided Sessions v. Dimaya,\\n\\n584 U.S. __, 138 S. Ct. 1204 (2018), and we held this appeal pending our en banc\\n\\ndecision in Ovalles v. United States (“Ovalles II”), 905 F.3d 1231 (11th Cir. 2018)\\n\\n(en banc). After review, we affirm.\\n\\n I. PROCEDURAL HISTORY\\n\\nA. Convictions, Direct Appeal, and First § 2255 Motion\\n\\n In 2008, a federal grand jury charged Solomon with: (1) one count of\\n\\nconspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a)\\n\\n(Count 1); (2) one count of conspiracy to use and carry a firearm during and in\\n\\nrelation to, and to possess a firearm in furtherance of, the Hobbs Act conspiracy\\n\\ncharged in Count 1, in violation of 18 U.S.C. § 924(c)(1)(A) and (o) (Count 2);\\n\\n(3) 17 substantive counts of Hobbs Act robbery, in violation of 18 U.S.C.\\n\\n§§ 1951(a) and 2 (Counts 3, 5, 7, 9 11, 13, 15, 17, 19, 21, 23, 25, 27, 29, 31, 33,\\n\\nand 35); and (4) 17 substantive counts of carrying a firearm during and in relation\\n\\nto a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1) and 2 (Counts 4, 6, 8,\\n\\n10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34, and 36). Each of the substantive\\n\\n§ 924(c) counts was predicated on the preceding substantive Hobbs Act robbery\\n\\n\\n 2\\n\\f Case: 17-14830 Date Filed: 01/08/2019 Page: 3 of 13\\n\\n\\ncount. For example, Count 3 charged Solomon with the December 11, 2007\\n\\nrobbery of a Papa John’s Pizza employee, and Count 4 correspondingly charged\\n\\nhim with carrying a firearm during and in relation to that robbery. All in all, the\\n\\nindictment charged that from December 2007 through late March 2008, Solomon\\n\\nused a firearm to rob a variety of restaurants, including several pizza places and\\n\\nChinese food restaurants and multiple Subway locations.\\n\\n Solomon pled not guilty and proceeded to trial. In 2009, following a 10-day\\n\\ntrial, the jury found Solomon guilty on all but two of the charged counts, Counts 23\\n\\nand 24. Thus, Solomon was convicted of: (1) one count of conspiracy to commit\\n\\nHobbs Act robbery; (2) one count of conspiracy to carry a firearm during and in\\n\\nrelation to, and to possess a firearm in furtherance of, the Hobbs Act conspiracy;\\n\\n(3) 16 substantive counts of Hobbs Act robbery; and (4) 16 substantive § 924(c)\\n\\ncounts.\\n\\n At Solomon’s sentencing in 2009, the district court imposed a total sentence\\n\\nof 4,641 months’ imprisonment. This sentence consisted of: (1) 57 months each as\\n\\nto Counts 1 (Hobbs Act conspiracy), 2 (§ 924(c) conspiracy), and 3, 5, 7, 9, 11, 13,\\n\\n15, 17, 19, 21, 25, 27, 29, 31, 33, and 35 (substantive Hobbs Act robberies), to be\\n\\nserved concurrently with each other; (2) a consecutive sentence of 84 months as to\\n\\nCount 4 (first substantive § 924(c) conviction); and (3) 300 months each as to\\n\\nCounts 6, 8, 10, 12, 14, 16, 18, 20, 22, 26, 28, 30, 32, 34, and 36 (additional\\n\\n\\n 3\\n\\f Case: 17-14830 Date Filed: 01/08/2019 Page: 4 of 13\\n\\n\\n§ 924(c) convictions), to be served consecutive to each other and to all of the other\\n\\ncounts.\\n\\n Solomon appealed, raising several conviction issues and challenging the\\n\\nimposition of consecutive sentences on his substantive § 924(c) convictions. See\\n\\nUnited States v. Lewis, 433 F. App’x 844, 845-46 (11th Cir. 2011) (unpublished).\\n\\nIn 2011, this Court affirmed Solomon’s convictions and sentences. Id. at 847. In\\n\\n2012, Solomon filed his first 28 U.S.C. § 2255 motion to vacate, set aside, or\\n\\ncorrect his sentence, raising two claims of ineffective assistance of trial counsel. In\\n\\n2013, the district court denied Solomon’s original § 2255 motion and denied him a\\n\\nCOA. In 2014, this Court also denied Solomon a COA.\\n\\nB. June 2016 Successive § 2255 Motion\\n\\n On June 10, 2016, Solomon filed an application for leave to file a successive\\n\\n§ 2255 motion with this Court. In relevant part, Solomon’s June 2016 application\\n\\nsought to challenge his § 924(c) convictions and sentences in light of the Supreme\\n\\nCourt’s decision in Johnson, which invalidated the residual clause of the Armed\\n\\nCareer Criminal Act (“ACCA”) as unconstitutionally vague.\\n\\n On July 8, 2016, this Court denied in part and granted in part Solomon’s\\n\\napplication. This Court denied Solomon’s application as to his substantive\\n\\n§ 924(c) convictions in Counts 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 26, 28, 30, 32, 34,\\n\\nand 36. Each of those convictions corresponded to a companion substantive Hobbs\\n\\n\\n 4\\n\\f Case: 17-14830 Date Filed: 01/08/2019 Page: 5 of 13\\n\\n\\nAct robbery conviction. Following our precedent in In re Saint Fleur, 824 F.3d\\n\\n1337 (11th Cir. 2016), this Court held that substantive Hobbs Act robbery is a\\n\\ncrime of violence under § 924(c)(3)(A)’s elements clause. 1\\n\\n This Court, however, granted Solomon’s application as to his § 924(c)\\n\\nconspiracy conviction in Count 2 because that conviction corresponded to his\\n\\nHobbs Act conspiracy conviction in Count 1. This Court explained that “an\\n\\napplicant has made a prima facie case, for purposes of second or successive\\n\\nreview, when seeking to challenge a conviction for conspiracy to commit Hobbs\\n\\nAct robbery based on an argument that such a conviction meets only the residual\\n\\nclause of § 924(c).” (citing In re Pinder, 824 F.3d 977 (11th Cir. 2016).\\n\\nAccordingly, as a threshold determination, this Court granted in part Solomon’s\\n\\napplication to file a successive § 2255 motion, but only with respect to his\\n\\nchallenge to his § 924(c) conspiracy-related conviction in Count 2.\\n\\n\\n\\n\\n 1\\n Subsequent to Saint Fleur, five other circuits have held that Hobbs Act robbery qualifies\\nas a crime of violence under § 924(c)(3)(A)’s elements clause. See United States v. Barrett, 903\\nF.3d 166, 174 (2d Cir. 2018), pet. for cert. filed, No. 18-6985 (U.S. Dec. 11, 2018); United States\\nv. Melgar-Cabrera, 892 F.3d 1053, 1064-66 (10th Cir.), cert. denied, 2018 WL 5017618 (Nov.\\n13, 2018); Diaz v. United States, 863 F.3d 781, 783-84 (8th Cir. 2017); United States v. Gooch,\\n850 F.3d 285, 291-92 (6th Cir.), cert. denied, 137 S. Ct. 2230 (2017); United States v. Rivera,\\n847 F.3d 847, 848-49 (7th Cir.), cert. denied, 137 S. Ct 2228 (2017). This Court also held again\\nin a direct appeal case that Hobbs Act robbery qualifies as a crime of violence under\\n§ 924(c)(3)(A). United States v. St. Hubert, 909 F.3d 335, 345-51 (11th Cir. 2018).\\n 5\\n\\f Case: 17-14830 Date Filed: 01/08/2019 Page: 6 of 13\\n\\n\\nC. District Court Proceedings on Successive § 2255 Motion\\n\\n Following this Court’s order, Solomon’s case was returned to the district\\n\\ncourt for adjudication of his authorized successive § 2255 motion. Solomon was\\n\\nrepresented by counsel in the district court. In July 2017, a magistrate judge issued\\n\\na report and recommendation (“R&R”) recommending that Solomon’s successive\\n\\n§ 2255 motion be denied. As to the merits of Solomon’s claim, the magistrate\\n\\njudge determined, based on our then-recent decision in Ovalles v. United States\\n\\n(“Ovalles I”), 861 F.3d 1257 (11th Cir. 2017), vacated on reh’g en banc, 905 F.3d\\n\\n1231 (11th Cir. 2018), that Johnson’s vagueness holding did not apply to or\\n\\ninvalidate § 924(c)(3)(B)’s residual clause. The magistrate judge noted that\\n\\nSolomon did not dispute that his Hobbs Act conspiracy conviction satisfied\\n\\n§ 924(c)(3)(B)’s residual clause, but rather argued only that the residual clause was\\n\\nunconstitutional. Because that argument lacked merit in light of Ovalles I, the\\n\\nmagistrate judge concluded that Solomon’s successive § 2255 motion should be\\n\\ndenied.2\\n\\n Solomon objected to the R&R. Solomon argued that the district court\\n\\nshould not rely on Ovalles I because (1) this Court had withheld the mandate in\\n\\n\\n\\n 2\\n In the interest of completeness, the magistrate judge went on to address whether, if\\nJohnson did apply, Hobbs Act conspiracy would qualify under § 924(c)(3)(A)’s elements clause.\\nThe magistrate judge determined that it would not. The district court, however, did not adopt\\nthat portion of the magistrate judge’s R&R, as it was unnecessary to the resolution of Solomon’s\\nsuccessive § 2255 motion.\\n 6\\n\\f Case: 17-14830 Date Filed: 01/08/2019 Page: 7 of 13\\n\\n\\nthat case, indicating that it might be reheard en banc, and (2) Sessions v. Dimaya\\n\\nwas then pending in the Supreme Court and might impact the reasoning applied in\\n\\nOvalles I to distinguish § 924(c) from the ACCA. Solomon also contended that,\\n\\neven if Ovalles I correctly held that § 924(c)(3)(B)’s residual clause was\\n\\nconstitutional, his § 924(c) conspiracy conviction was still invalid because Hobbs\\n\\nAct conspiracy did not qualify as a crime of violence under § 924(c)(3)(B)’s\\n\\nresidual clause. Specifically, Solomon argued that any risk of injury that may\\n\\noccur in the context of a Hobbs Act conspiracy “arises from the object of the\\n\\nconspiracy, which is a separate and distinct offense that is temporally removed\\n\\nfrom the scope-of-the-risk analysis under § 924(c)(3)(B).” In other words,\\n\\nSolomon contended that the Hobbs Act conspiracy itself does not require proof of\\n\\nany overt act and thus a conspiracy poses no risk of injury.\\n\\n The government responded that Ovalles I was binding precedent regardless\\n\\nof whether the mandate had issued and should be applied in Solomon’s case. The\\n\\ngovernment further asserted that Solomon’s alternative argument—that Hobbs Act\\n\\nconspiracy did not qualify under the residual clause—was not cognizable in the\\n\\ncontext of a successive § 2255 motion. The government explained that this\\n\\nCourt’s grant of leave for Solomon to file a successive § 2255 motion was limited\\n\\nto his claim that his § 924(c) conviction in Count 2 was invalid in light of Johnson\\n\\nand did not encompass other challenges to the validity of that conviction.\\n\\n\\n 7\\n\\f Case: 17-14830 Date Filed: 01/08/2019 Page: 8 of 13\\n\\n\\n Over Solomon’s objections, the district court adopted the R&R’s\\n\\nrecommendation that Solomon’s motion be denied “because Johnson does not\\n\\napply to § 924(c)(3)(B).” However, the district court granted Solomon a COA “as\\n\\nto whether Johnson applies to § 924(c)(3)(B).” Solomon now appeals.\\n\\n II. LEGAL BACKGROUND\\n\\n The legal landscape in this case has developed since the district court ruled\\n\\non Solomon’s authorized successive § 2255 motion. We therefore detail those\\n\\nlegal developments below before turning to the merits of Solomon’s case.\\n\\n Following the Supreme Court’s decision in Johnson and this Court’s\\n\\ndecision in Ovalles I, the Supreme Court decided Sessions v. Dimaya. In Dimaya,\\n\\nthe Supreme Court addressed whether Johnson’s vagueness holding as to the\\n\\nACCA’s residual clause applied to and invalidated the residual clause in 18 U.S.C.\\n\\n§ 16(b)’s crime of violence definition. 584 U.S. at __, 138 S. Ct. at 1210-12.\\n\\nSection 16(b) defined a crime of violence as “any other offense that is a felony and\\n\\nthat, by its nature, involves a substantial risk that physical force against the person\\n\\nor property of another may be used in the course of committing the offense.” 18\\n\\nU.S.C. § 16(b). Strictly applying the ordinary case or categorical approach, the\\n\\nSupreme Court in Dimaya held that § 16(b)’s residual clause, as incorporated into\\n\\nthe Immigration and Nationality Act, like the ACCA’s residual clause in Johnson,\\n\\n\\n\\n\\n 8\\n\\f Case: 17-14830 Date Filed: 01/08/2019 Page: 9 of 13\\n\\n\\nwas void for vagueness and thus unconstitutional. Id. at 1210-11, 1213-16, 1218-\\n\\n23.\\n\\n After the Supreme Court issued its decision in Dimaya, this Court vacated\\n\\nthe opinion in Ovalles I and granted rehearing en banc. Ovalles v. United States,\\n\\n889 F.3d 1259 (11th Cir. 2018). On rehearing en banc, this Court expressly\\n\\nconsidered the effect, if any, of Johnson and Dimaya on § 924(c)(3)(B)’s residual\\n\\nclause which, like § 16(b), defines a crime of violence as “an offense that is a\\n\\nfelony” and that “by its nature, involves a substantial risk that physical force\\n\\nagainst the person or property of another may be used in the course of committing\\n\\nthe offense.” Ovalles II, 905 F.3d at 1233-34, 1236-40; 18 U.S.C. § 924(c)(3)(B).\\n\\n In Ovalles II, the en banc Court determined that § 924(c)(3)(B)’s residual\\n\\nclause can plausibly be interpreted to incorporate either a categorical or a conduct-\\n\\nbased approach. See Ovalles II, 905 F.3d at 1251. The en banc Court explained\\n\\nthat, for the reasons outlined in Johnson and Dimaya, application of the categorical\\n\\napproach would render § 924(c)(3)(B)’s residual clause unconstitutionally vague.\\n\\nId. at 1233, 1239-40. By contrast, the en banc Court explained, if § 924(c)(3)(B)’s\\n\\nresidual clause is interpreted to incorporate the conduct-based approach, it is not\\n\\nunconstitutionally vague. Id. at 1233-34, 1240. As such, the en banc Court\\n\\ndetermined that the canon of constitutional doubt required us to adopt the statute-\\n\\nsaving conduct-based interpretation. See id. at 1240, 1251-52. Given that the\\n\\n\\n 9\\n\\f Case: 17-14830 Date Filed: 01/08/2019 Page: 10 of 13\\n\\n\\nconduct-based approach applied to § 924(c)(3)(B)’s residual clause, the en banc\\n\\nCourt held that the residual clause was not unconstitutionally vague in light of\\n\\nJohnson and Dimaya. Id. at 1252.\\n\\n Relying on Ovalles II, this Court has since held that a federal prisoner’s\\n\\nproposed vagueness challenge to § 924(c)(3)(B)’s residual clause under Johnson\\n\\nand Dimaya could not satisfy the statutory requirements of § 2255(h). In re\\n\\nGarrett, 908 F.3d 686, 687-89 (11th Cir. 2018). The Garrett Court explained that,\\n\\ngiven Ovalles II’s holding that § 924(c)(3)(B) is not unconstitutionally vague,\\n\\n“neither Johnson nor Dimaya supplies any ‘rule of constitutional law’—‘new’ or\\n\\nold, ‘retroactive’ or nonretroactive, ‘previously unavailable’ or otherwise—that\\n\\ncan support a vagueness-based challenge to the residual clause of section 924(c).”\\n\\nId. at 689. This Court added that, even though Garrett was sentenced prior to\\n\\nOvalles II, during a time when this Court interpreted § 924(c) to require a\\n\\ncategorical approach, construing his claim to challenge the use of the categorical\\n\\napproach would “make no difference” because the substitution of one statutory\\n\\ninterpretation for another did not amount to a new rule of constitutional law. Id.\\n\\n III. DISCUSSION\\n\\n As a preliminary matter, we note that when this Court authorizes a federal\\n\\nprisoner to file a successive § 2255 motion in the district court, that authorization is\\n\\na threshold determination and narrowly circumscribed. The successive motion\\n\\n\\n 10\\n\\f Case: 17-14830 Date Filed: 01/08/2019 Page: 11 of 13\\n\\n\\ndoes not stand in the place of a first § 2255 motion, allowing the movant to raise\\n\\nany claim that would have been cognizable in an original § 2255 proceeding.\\n\\nRather, the claims raised in the successive § 2255 motion must still meet the\\n\\nrequirements of § 2255(h). See Randolph v. United States, 904 F.3d 962, 964\\n\\n(11th Cir. 2018). That is, “[o]nce we have authorized a movant to file a second or\\n\\nsuccessive § 2255 motion, the district court has jurisdiction to determine for itself\\n\\nif the motion relies on ‘a new rule of constitutional law, made retroactive to cases\\n\\non collateral review by the Supreme Court, that was previously unavailable.’” Id.\\n\\n(quoting 28 U.S.C. § 2255(h)(2)). “If the motion meets those requirements, the\\n\\ndistrict court has jurisdiction to decide whether any relief is due under the motion;\\n\\nif the motion does not meet the § 2255(h) requirements, the court lacks jurisdiction\\n\\nto decide whether the motion has any merit.” Id.\\n\\n Furthermore, in making the § 2255(h) determination, the district court owes\\n\\nno deference to our order authorizing the movant to file a successive § 2255\\n\\nmotion. Id. at 965. Our threshold determination that the movant made a prima\\n\\nfacie showing that he satisfied § 2255(h)’s criteria does not conclusively resolve\\n\\nthe issue. In re Moore, 830 F.3d 1268, 1271 (11th Cir. 2016); see also Jordan v.\\n\\nSec’y, Dep’t of Corrs., 485 F.3d 1351, 1357-58 (11th Cir. 2007). Instead, “[w]hen\\n\\nwe issue an order authorizing a habeas petitioner to file a second or successive\\n\\n§ 2255 motion, the district court is to decide the § 2255(h) issues fresh, or in the\\n\\n\\n 11\\n\\f Case: 17-14830 Date Filed: 01/08/2019 Page: 12 of 13\\n\\n\\nlegal vernacular, de novo.” Randolph, 904 F.3d at 965 (quotation marks omitted).\\n\\nOur “first hard look” at whether the § 2255(h) requirements have been met then\\n\\ncomes, if at all, on appeal from the district court’s decision. Moore, 830 F.3d at\\n\\n1271 (quoting Jordan, 485 F.3d at 1358).\\n\\n Here, the district court denied Solomon’s authorized successive § 2255\\n\\nmotion because it concluded, based on our then-applicable precedent in Ovalles I,\\n\\nthat Johnson’s vagueness holding did not apply to or invalidate § 924(c)(3)(B)’s\\n\\nresidual clause. The district court framed this as a determination on the merits of\\n\\nSolomon’s successive § 2255 motion. In essence, however, in concluding that\\n\\nJohnson did not apply to § 924(c)(3)(B), the district court effectively determined\\n\\nthat Solomon’s successive § 2255 motion failed to satisfy § 2255(h)’s requirements\\n\\nbecause, in light of Ovalles I, Johnson did not supply a new rule of constitutional\\n\\nlaw that could support Solomon’s challenge to his § 924(c) conviction and\\n\\nsentence in Count 2. See Garrett, 908 F.3d at 689. Though Ovalles I has since\\n\\nbeen vacated, the district court’s conclusion remains correct in light of our en banc\\n\\ndecision in Ovalles II. As this Court explained in Garrett, given Ovalles II’s\\n\\nholding that § 924(c)(3)(B)’s residual clause is not unconstitutionally vague, a\\n\\nJohnson- or Dimaya-based vagueness challenge to § 924(c)’s residual clause\\n\\ncannot satisfy § 2255(h)(2)’s “new rule of constitutional law” requirement. Id.\\n\\nLikewise, any challenge Solomon might raise to the district court’s use of the\\n\\n\\n 12\\n\\f Case: 17-14830 Date Filed: 01/08/2019 Page: 13 of 13\\n\\n\\ncategorical approach and its application of § 924(c)(3)(B)’s residual clause in his\\n\\ncase would not satisfy § 2255(h) either, as such a claim would be statutory in\\n\\nnature. See id. Ovalles II and Garrett foreclose even the most generous reading of\\n\\nSolomon’s challenges, both constitutional and statutory, to his § 924(c) conviction\\n\\nin Count 2. See United States v. St. Hubert, 909 F.3d 335, 346 (11th Cir. 2018)\\n\\n(“[L]aw established in published three-judge orders issued pursuant to 28 U.S.C.\\n\\n§ 2244(b) in the context of applications for leave to file second or successive\\n\\n§ 2255 motions is binding precedent on all subsequent panels of this Court,\\n\\nincluding those reviewing direct appeals and collateral attacks . . . .”).\\n\\n IV. CONCLUSION\\n\\n For the foregoing reasons, the district court did not err in denying Solomon’s\\n\\nauthorized successive § 2255 motion, and we affirm.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 13\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":396,"cells":{"id":{"kind":"number","value":4579737,"string":"4,579,737"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Erickson Meko CAMPBELL, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Erickson Meko Campbell"},"decision_date":{"kind":"string","value":"2019-01-08"},"docket_number":{"kind":"string","value":"16-10128"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Tjoflat, Martin, Murphy\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9887834/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"035concurrenceinpart\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9887835/\", \"author_raw\": \"\"}, {\"author\": \"TJOFLAT, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 16-10128 Date Filed: 01/08/2019 Page: 1 of 32\\n\\n\\n [PUBLISH]\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 16-10128\\n ________________________\\n\\n D.C. Docket No. 3:14-cr-00046-CAR-CHW-1\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n\\n Plaintiff-Appellee,\\n\\nversus\\n\\nERICKSON MEKO CAMPBELL,\\n\\n Defendant-Appellant.\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Georgia\\n ________________________\\n\\n (January 8, 2019)\\n\\nBefore TJOFLAT and MARTIN, Circuit Judges, and MURPHY,∗ District Judge.\\n\\nTJOFLAT, Circuit Judge:\\n\\n\\n\\n ∗\\n Honorable Stephen J. Murphy III, District Judge for the United States District Court for\\nthe Eastern District of Michigan, sitting by designation.\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 2 of 32\\n\\n\\n This appeal presents important questions about the proper confines of a\\n\\ntraffic stop. First, whether a highway patrolman had reasonable suspicion to stop a\\n\\nmotorist for a rapidly blinking turn signal. Second, if there was reasonable\\n\\nsuspicion, whether the seizure became unreasonable when the patrolman prolonged\\n\\nthe stop by questioning the motorist about matters unrelated to the stop’s mission.\\n\\nThe District Court concluded that the initial stop was valid and that the questioning\\n\\nabout unrelated matters did not transform the stop into an unreasonable seizure.\\n\\nThe District Court therefore denied the motorist’s motion to suppress inculpatory\\n\\nevidence discovered during a subsequent search.\\n\\n We agree that there was reasonable suspicion to stop the motorist. But we\\n\\nfind that under the Supreme Court’s recent decision in Rodriguez v. United States,\\n\\n135 S. Ct. 1609 (2015), the patrolman did unlawfully prolong the stop. Because\\n\\nhis actions were permitted under binding case law at the time, however, the good\\n\\nfaith exception to the exclusionary rule applies. We thus affirm the denial of the\\n\\nmotion to suppress.\\n\\n I.\\n\\n A.\\n\\n At about 9:00pm on a brisk night in December 2013, Deputy Sheriff Robert\\n\\nMcCannon was patrolling Interstate 20 in Georgia when he observed a Nissan\\n\\n\\n\\n\\n 2\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 3 of 32\\n\\n\\nMaxima cross the fog line. 1 McCannon activated the camera on the dashboard of\\n\\nhis patrol car, and after observing the Maxima cross the fog line a second time and\\n\\nnoticing that its left turn signal blinked at an unusually rapid pace, he pulled the car\\n\\nover. He approached the Maxima, introduced himself to the driver, Erickson\\n\\nCampbell, asked him for his driver’s license, and explained why he had pulled him\\n\\nover. After determining that the Maxima’s left turn signal was malfunctioning,\\n\\nMcCannon decided to issue Campbell a warning for failing to comply with two\\n\\nGeorgia traffic regulations: failure to maintain signal lights in good working\\n\\ncondition,2 and failure to stay within the driving lane.3 McCannon asked Campbell\\n\\n\\n 1\\n The “fog line” is the line on the side of the highway that separates the highway from the\\nshoulder, marking the end of the highway’s outside lane.\\n 2\\n O.C.G.A. § 40–8–26 states, in pertinent part:\\n (a) Any motor vehicle may be equipped . . . with the following signal lights or devices:\\n\\n ....\\n\\n (2) A light or lights or mechanical signal device capable of clearly indicating any\\n intention to turn either to the right or to the left and which shall be visible from\\n both the front and the rear.\\n\\n (b) Every . . . signal light or lights indicating intention to turn shall be visible and\\n understandable during daytime and nighttime from a distance of 300 feet from both the\\n front and the rear. . . . [S]uch light or lights shall at all times be maintained in good\\n working condition.\\n 3\\n O.C.G.A. § 40–6–48 states, in pertinent part:\\n Whenever any roadway has been divided into two or more clearly marked lanes for\\n traffic, the following rules, in addition to all others consistent with this Code section,\\n shall apply:\\n\\n (1) A vehicle shall be driven as nearly as practicable entirely within a single lane\\n and shall not be moved from such lane until the driver has first ascertained that\\n such movement can be made with safety.\\n\\n 3\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 4 of 32\\n\\n\\nto step out of his car and accompany him to the patrol car while he wrote the\\n\\nwarning ticket.\\n\\n While writing the ticket, McCannon asked the dispatcher to run a check on\\n\\nCampbell’s license and engaged Campbell in conversation. He learned that\\n\\nCampbell was en route to Augusta to see his family, where Campbell worked, that\\n\\nCampbell had been arrested sixteen years ago for a DUI, and that Campbell was\\n\\nnot traveling with a firearm. Then he asked Campbell if he had any counterfeit\\n\\nCDs or DVDs, illegal alcohol, marijuana, cocaine, methamphetamine, heroin,\\n\\necstasy, or dead bodies in his car. Campbell answered that he did not. At that\\n\\ntime, McCannon asked Campbell if he could search his car for any of those items,\\n\\nand Campbell consented.\\n\\n While McCannon continued writing the warning ticket, Deputy Patrick\\n\\nPaquette, who had arrived on the scene a few minutes earlier, began searching the\\n\\ncar. McCannon finished the warning ticket and had Campbell sign it. After giving\\n\\nCampbell the ticket and returning his license, McCannon joined Paquette in the\\n\\nsearch. They found a 9mm semi-automatic pistol, 9mm ammunition, a black\\n\\nstocking cap, and a camouflage face mask in a bag hidden under the carpet in the\\n\\nMaxima’s trunk. Confronted, Campbell admitted that he lied about not traveling\\n\\nwith a firearm because he was a convicted felon and had done time.\\n\\n B.\\n\\n 4\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 5 of 32\\n\\n\\n Campbell was indicted for possessing a firearm as a convicted felon, in\\n\\nviolation of 18 U.S.C. § 922(g)(1). Following his indictment, he asserted that the\\n\\nevidence found in the search of his car was obtained in violation of the Fourth\\n\\nAmendment’s prohibition against unreasonable searches and seizures, and moved\\n\\nthe District Court to suppress it. 4 He presented two arguments in support of his\\n\\nmotion. First, the seizure was unreasonable because Deputy McCannon lacked\\n\\nreasonable suspicion to believe that a traffic violation had occurred. Second, even\\n\\nif there was reasonable suspicion, his seizure became unreasonable when\\n\\nMcCannon prolonged the stop by asking Campbell questions unrelated to the\\n\\npurpose of the stop. In turn, the unreasonable seizure tainted any consent he had\\n\\ngiven the officers to search his car, requiring that the evidence uncovered during\\n\\nthe search be suppressed. 5\\n\\n Campbell’s first argument was that his rapidly blinking turn signal did not\\n\\nsupply reasonable suspicion to make the traffic stop. All that O.C.G.A. § 40–8–26\\n\\nrequires is that the turn signal “indicate a driver’s intention to change lanes,” and\\n\\nthe Maxima’s left turn signal was able to do that. That the signal was not blinking\\n\\n\\n\\n 4\\n The Fourth Amendment states, in pertinent part, that “The right of the people to be\\nsecure in their persons, houses, papers, and effects, against unreasonable searches and seizures,\\nshall not be violated.” The Fourth Amendment is applicable to the states through the Due\\nProcess Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684,\\n1692 (1961).\\n 5\\n Campbell also argued that the search was tainted because it exceeded the scope of any\\nconsent he had given, but this issue is not before us on appeal.\\n 5\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 6 of 32\\n\\n\\nas designed was irrelevant, Campbell said, because the statute did not require that a\\n\\nturn signal “(1) blink in unison with the other turn signal, (2) blink at a certain\\n\\npace, or even, (3) blink as intended by the vehicle manufacturer.” 6\\n\\n Campbell’s second argument was that McCannon unlawfully prolonged the\\n\\nstop by asking questions unrelated to the purpose of the stop. Specifically, he\\n\\nchallenged questions on the following topics:\\n\\n McCannon asked: (1) where he was going, (2) who he was going to\\n see, (3) where he worked, (4) if he had time off work, (5) when his\\n last traffic ticket was, (6) if he had ever been arrested, (7) how old his\\n car was, (8) how good of a deal he got on his car, (9) whether he had\\n any counterfeit merchandise in the car, and, (10) if he had a dead body\\n in the car.\\n\\nRelying on the Supreme Court’s decision in Rodriguez, Campbell maintained that\\n\\nif McCannon prolonged the stop at all through these inquiries, the stop became\\n\\nunlawful.\\n\\n The District Court held an evidentiary hearing on Campbell’s motion to\\n\\nsuppress. Deputy McCannon, whom the Government called to the stand at the\\n\\noutset of the hearing, was the sole witness. Aside from his testimony, the Court\\n\\nhad the benefit of the video created by the dashboard camera. The video portrays\\n\\nwhat transpired between McCannon’s activation of the camera and Campbell’s\\n\\narrest, including the questioning Campbell complains of as unrelated to the\\n\\n\\n 6\\n Campbell also denied that reasonable suspicion existed for allegedly crossing the fog\\nline. The District Court did not reach this argument and neither do we.\\n 6\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 7 of 32\\n\\n\\npurpose of the stop. The video’s timestamps indicate precisely when this\\n\\nquestioning took place. The following bullet points, headed by the timestamps,\\n\\ndemonstrate this.\\n\\n • 0:00: McCannon activates the camera.\\n • 2:05–16: McCannon provides the Sheriff’s Office dispatcher with the\\n car’s license plate number. The dispatcher runs the number and informs\\n him that it belongs to Erickson Campbell, an “active felon.”\\n • 2:31: McCannon activates his patrol car’s flashing lights.\\n • 2:36–58: Campbell pulls over.\\n • 3:25–32: McCannon approaches the car from the passenger side and\\n requests Campbell’s driver’s license.\\n • 3:34–4:42: McCannon explains to Campbell that he stopped him for\\n “weaving in his lane” and because his left turn signal was blinking\\n rapidly. McCannon says the rapid blinking means “you’ve got a bulb\\n out somewhere.” He then checks the lights in the front and back of the\\n car, none of which are out. McCannon says it must be that the turn\\n signal is “about to go bad,” but that he won’t write a ticket for that—\\n just a warning.\\n • 4:43–5:09: McCannon asks Campbell where he is going. Campbell\\n says he is traveling to Augusta, Georgia. McCannon asks why he is\\n going there, and Campbell responds that he is going to see his family.\\n • 5:10–13: McCannon asks Campbell to step out of the car and walk with\\n him to the patrol car where he will write the warning.\\n • 5:48: McCannon begins writing the warning ticket.\\n • 6:13–29: McCannon asks Campbell about his family in Augusta,\\n adding that he knows a little about Augusta. Campbell says he does not\\n know much about Augusta; he just has family there. McCannon\\n continues writing the ticket.\\n • 6:30–57: McCannon asks Campbell what type of work he does.\\n Campbell says that he works for American Woodlawn, building for\\n Home Depot and Lowes.\\n • 7:07–27: McCannon asks Campbell where his family lives in Augusta.\\n Campbell responds that his family lives off of Watson Road.\\n McCannon indicates he knows approximately where that is, and\\n continues writing the ticket.\\n\\n\\n 7\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 8 of 32\\n\\n\\n • 7:48–8:30: McCannon stops writing to retrieve his jacket from the\\n patrol car.\\n • 8:32–38: McCannon asks Campbell if he is traveling with a firearm.\\n Campbell shakes his head no.\\n • 9:07: McCannon acknowledges Sergeant Paquette, who has just\\n arrived off camera. 7\\n • 9:12–18: McCannon asks Paquette to “come here and let me ask you\\n about this location.” McCannon tells Campbell that Paquette is from\\n Augusta.\\n • 9:31–39: McCannon calls the dispatcher to run a check on Campbell’s\\n driver’s license.\\n • 9:40–54: McCannon asks Campbell if he had been arrested before.\\n Campbell responds yes, about sixteen years ago, for a DUI.\\n • 10:00–56: McCannon and Paquette ask Campbell about his destination\\n and where his family lives in Augusta, while McCannon continues to\\n intermittently write the ticket.\\n • 11:16–19: McCannon: “I know I asked you if you have any firearms\\n tonight, and you said ‘no.’” Campbell nods and says “yes, sir.”\\n • 11:20–45: McCannon: “Any counterfeit merchandise that you’re\\n taking to your relatives in Augusta? And what I mean by that is—any\\n purses? Shoes? Shirts? Any counterfeit or bootleg CDs or DVDs?\\n Anything like that? Any illegal alcohol? Any marijuana? Any cocaine?\\n Methamphetamine? Any heroin? Any ecstasy? Nothing like that? You\\n don’t have any dead bodies in your car?” Campbell shakes his head or\\n otherwise responds in the negative to each question.\\n • 11:47–55: McCannon: “I know you said you didn’t have that, and I’m\\n not accusing you of anything—can I search it? Can I search your car\\n for any of those items I asked you about?” Campbell responds in the\\n affirmative, nodding and gesturing toward the car.\\n • 12:02–13:05: Paquette pats down Campbell after McCannon indicates\\n that he had not yet done so. McCannon continues writing the ticket.\\n • 13:06: Paquette begins searching the car.\\n • 13:22–44: McCannon asks Campbell to sign the ticket. Campbell does\\n so and returns it to McCannon.\\n • 14:00: McCannon hands the ticket to Campbell.\\n • 16:18–19:58: McCannon and Paquette search the car.\\n\\n 7\\n Sergeant Paquette had observed McCannon’s encounter with Campbell while patrolling\\nthe highway, and had pulled over to assist.\\n 8\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 9 of 32\\n\\n\\n • 19:58–20:08: Paquette informs McCannon that he has discovered a gun\\n and a ski mask.\\n • 20:30–21:02: The officers finish searching the car and place Campbell\\n in handcuffs.\\n • 21:25–40: McCannon informs Campbell of his Miranda rights.\\n • 24:12–48: McCannon tells Campbell he is under arrest for felon in\\n possession of a firearm. McCannon places Campbell in the rear of his\\n patrol car to be taken to the Greene County jail.\\n\\n From the time McCannon began writing the warning ticket to Campbell’s\\n\\nconsent to the search, a total of 6 minutes and 7 seconds elapsed. Campbell\\n\\nconsented 8 minutes and 57 seconds after McCannon made the stop.\\n\\n C.\\n\\n At the conclusion of the evidentiary hearing, the District Court asked the\\n\\nparties for supplemental briefing to address the possible application of the\\n\\nRodriguez decision. The District Court also requested supplemental briefing on\\n\\nthe applicability of Davis v. United States, in which the Supreme Court held that\\n\\nthe Fourth Amendment’s exclusionary rule should not apply when the police act in\\n\\ngood-faith reliance on binding judicial precedent. 564 U.S. 229, 232, 131 S. Ct.\\n\\n2419, 2423–24 (2011). After briefing, the Court denied the motion to suppress.\\n\\n The District Court determined that the rapidly blinking turn signal provided\\n\\nreasonable suspicion to stop the car. Georgia’s statute requires turn signals to be in\\n\\ngood working condition. The Court reasoned that McCannon had reasonable\\n\\nsuspicion to believe that the rapidly blinking turn signal violated this requirement.\\n\\nThe Court further concluded that McCannon had “reasonable suspicion to initiate\\n 9\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 10 of 32\\n\\n\\nthe stop to determine whether the front signal lights were functioning properly.”\\n\\nThe Court based this conclusion on McCannon’s testimony that in his experience a\\n\\nrapidly blinking turn signal indicates either a bulb is out or is about to go out.\\n\\nGiven this finding, there was no need to address the failure-to-maintain-lane\\n\\nviolation.\\n\\n After finding reasonable suspicion, the District Court moved to the\\n\\nprolongation issue. The Court found that precedent entitled McCannon to ask\\n\\nCampbell about his destination and the purpose of his trip; the year his car was\\n\\nmade; the last traffic citation he received; his criminal history8; and whether he was\\n\\ntraveling with a firearm. As the Court put it, “[t]hese questions either addressed the\\n\\ntraffic violation or were related to legitimate safety concerns.”\\n\\n But the questions about contraband, the Court said, were not related to the\\n\\npurpose of the stop. These questions—about counterfeit merchandise, drugs, and\\n\\ndead bodies—and Campbell’s negative responses, consumed all of 25 seconds.\\n\\nImmediately thereafter, Campbell consented to the search of his automobile.\\n\\n Citing our decision in United States v. Griffin, 696 F.3d 1354, 1362 (11th\\n\\nCir. 2012), the Court said the few seconds “McCannon took to ask a few unrelated\\n\\nquestions ‘did not transform the stop into an unconstitutionally prolonged\\n\\n\\n 8\\n Citing United States v. Purcell, 236 F.3d 1274, 1280 (11th Cir. 2001), the Court held\\nthat McCannon “lawfully asked Defendant about his criminal history while he waited on dispatch\\nto run [Defendant’s] license information.”\\n 10\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 11 of 32\\n\\n\\nseizure.’” The Court concluded that the overall length of the stop was reasonable\\n\\nand that McCannon conducted the stop expeditiously. Because the seizure was\\n\\nreasonable, there was no reason for the Court to decide whether the consent was\\n\\ntainted or the good faith exception to the exclusionary rule applied.\\n\\n Following the Court’s ruling, Campbell entered a conditional guilty plea,\\n\\npreserving the right to appeal the denial of his motion to suppress. See Fed. R.\\n\\nCrim. P. 11(a)(2). He lodged this appeal after the Court imposed a 28-month\\n\\nsentence.\\n\\n II.\\n\\n “A denial of a motion to suppress involves mixed questions of fact and law.”\\n\\nUnited States v. Spivey, 861 F.3d 1207, 1212 (11th Cir. 2017) (quotation omitted).\\n\\nWe review the District Court’s findings of fact for clear error, considering all the\\n\\nevidence in the light most favorable to the prevailing party—in this case, the\\n\\nGovernment. Id. But we review de novo the District Court’s application of the\\n\\nlaw to those facts. United States v. Luna-Encinas, 603 F.3d 876, 880 (11th Cir.\\n\\n2010). Our review is not moored to the evidence presented at the suppression\\n\\nhearing; we are free to look at the whole record. United States v. Newsome, 475\\n\\nF.3d 1221, 1224 (11th Cir. 2007).\\n\\n A.\\n\\n\\n\\n\\n 11\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 12 of 32\\n\\n\\n A traffic stop is a seizure within the meaning of the Fourth Amendment.\\n\\nWhren v. United States, 517 U.S. 806, 809–10, 116 S. Ct. 1769, 1772 (1996). To\\n\\ncomply with the Fourth Amendment, the officer must have reasonable suspicion.\\n\\nHeien v. North Carolina, 135 S. Ct. 530, 536 (2014) (“All parties agree that to\\n\\njustify [a traffic stop], officers need only reasonable suspicion[.]” (quotation\\n\\nomitted)). 9 That is, the officer must have “a particularized and objective basis for\\n\\nsuspecting the person stopped of criminal activity.” Navarette v. California, 572\\n\\nU.S. 393, 396, 134 S. Ct. 1683, 1687 (2014). Criminal activity includes even\\n\\nminor traffic violations. See United States v. Chanthasouxat, 342 F.3d 1271, 1277\\n\\n(11th Cir. 2003). The question here is whether a rapidly blinking turn signal\\n\\ncreates reasonable suspicion that a traffic violation has occurred.\\n\\n Georgia law requires that a vehicle be equipped with right and left turn\\n\\nsignal lights. O.C.G.A. § 40–8–26(a)(2). Such lights must clearly indicate an\\n\\nintention to turn right or left and be visible from the front and rear from a distance\\n\\nof 300 feet. In addition, such lights “shall at all times be maintained in good\\n\\n\\n 9\\n The parties and the District Court mention needing reasonable suspicion or probable\\ncause. This framing is understandable given the Supreme Court’s declaration in Whren that “the\\ndecision to stop an automobile is reasonable where the police have probable cause to believe that\\na traffic violation has occurred.” Whren, 517 U.S. at 810, 116 S. Ct. at 1772. We have also\\nechoed that standard. See United States v. Pierre, 825 F.3d 1183, 1192 (11th Cir. 2016)\\n(“Pursuant to the Fourth Amendment, police may stop a vehicle if they have probable cause to\\nbelieve that a traffic violation has occurred.”). But the Supreme Court has since made it plain\\nthat reasonable suspicion is all that is required. See Heien, 135 S. Ct. at 536. While probable\\ncause is sufficient, only reasonable suspicion is necessary.\\n\\n\\n 12\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 13 of 32\\n\\n\\nworking condition.” Id. §§ 40–8–26(a)(2), (b). As the District Court noted, the\\n\\ngood working condition requirement is separate. If all the statute demanded is that\\n\\nthe turn signal be visible from 300 feet and clearly indicate an intention to change\\n\\nlanes, the good working condition language would be superfluous. It must mean\\n\\nmore.\\n\\n Typically, when a turn signal blinks rapidly, it does so to notify the driver\\n\\nthat a bulb is out or is about to go out. It can also mean that there is a problem\\n\\nwith the wiring. Campbell maintains that a rapidly blinking turn signal works as\\n\\nintended—to notify the driver of a potential problem—and equipment that works\\n\\naccording to design must be in good working condition. But the rapid blinking is\\n\\nan alert that something, be it an expired bulb or faulty wiring, might not be in good\\n\\nworking condition. Thus, the rapidly blinking turn signal provided McCannon\\n\\nwith reasonable suspicion to believe that Campbell’s car was in violation of the\\n\\ntraffic code. On that basis, 10 we affirm the District Court’s holding that\\n\\nMcCannon’s initiation of the stop was lawful and proceed to the issue of whether\\n\\nhis unrelated inquiries turned Campbell’s seizure into a Fourth Amendment\\n\\nviolation.\\n\\n\\n\\n\\n 10\\n The District Court also noted that even if McCannon was mistaken that the rapidly\\nblinking turn signal violated the “good working condition” requirement of O.C.G.A. § 40–8–26,\\nhis mistake would be a reasonable mistake of law and thus “give rise to the reasonable suspicion\\nnecessary” to validate the stop and uphold the seizure. See Heien, 135 S. Ct. at 536.\\n 13\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 14 of 32\\n\\n\\n B.\\n\\n Even if the police have reasonable suspicion to make a traffic stop, they do\\n\\nnot have unfettered authority to detain a person indefinitely. The detention is\\n\\n“limited in scope and duration.” Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct.\\n\\n1319, 1326 (1983) (plurality opinion). Officers must conduct their investigation\\n\\ndiligently. See Rodriguez, 135 S. Ct. at 1616 (“[T]he Government acknowledges\\n\\nthat an officer always has to be reasonably diligent.” (quotation omitted)); see also\\n\\nUnited States v. Place, 462 U.S. 696, 709, 103 S. Ct. 2637, 2645 (1983) (“[I]n\\n\\nassessing the effect of the length of the detention, we take into account whether the\\n\\npolice diligently pursue their investigation.”). And officers cannot unlawfully\\n\\nprolong a stop. See Rodriguez, 135 S. Ct. at 1614–16.\\n\\n The Supreme Court expanded on unlawfully prolonged traffic stops in\\n\\nRodriguez. In that case, police pulled over a vehicle for swerving onto the\\n\\nshoulder. Id. at 1612. After writing a warning ticket and returning the license,\\n\\nregistration, and proof of insurance to the driver, the officer made the driver and\\n\\npassenger wait for seven or eight minutes while he conducted a dog sniff. Id. at\\n\\n1613. The dog discovered contraband, and the driver sought to suppress the\\n\\nevidence. Id. On appeal, the Eighth Circuit determined that a seven or eight\\n\\nminute delay is a permissible de minimis intrusion. Id. at 1614. But the Supreme\\n\\nCourt rejected the de minimis standard. Id. at 1615–16.\\n\\n 14\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 15 of 32\\n\\n\\n The Supreme Court explained that a traffic stop is analogous to a Terry stop.\\n\\nId. at 1614. As such, the scope of the stop “must be carefully tailored to its\\n\\nunderlying justification.” Id. (quoting Royer, 460 U.S. at 500). Thus, in the\\n\\ncontext of a traffic stop, “the tolerable duration of police inquiries . . . is\\n\\ndetermined by the seizure’s mission[.]” Rodriguez, 135 S. Ct. at 1614 (quotation\\n\\nomitted). The mission of a traffic stop is “to address the traffic violation that\\n\\nwarranted the stop . . . and attend to related safety concerns[.]” Id. The stop may\\n\\n“last no longer than is necessary” to complete its mission. Id. (quoting Royer, 460\\n\\nU.S. at 500). In other words, “[a]uthority for the seizure . . . ends when tasks tied\\n\\nto the traffic infraction are—or reasonably should have been—completed.” Id.\\n\\n The question becomes, which tasks are related to the stop’s purpose? The\\n\\nCourt identified a number of tasks it says are “ordinary inquiries incident to [the\\n\\ntraffic] stop.” Id. at 1615 (alteration in original). These inquiries include\\n\\n“checking the driver’s license, determining whether there are outstanding warrants\\n\\nagainst the driver, and inspecting the automobile’s registration and proof of\\n\\ninsurance.” Id. Inquiries such as these ensure “that vehicles on the road are\\n\\noperated safely and responsibly.” Id.\\n\\n The Court has also identified tasks that are not related to a stop’s purpose.\\n\\nIn Arizona v. Johnson, for example, the Court said asking about a passenger’s gang\\n\\naffiliation is not related. See 555 U.S. 323, 332, 129 S. Ct. 781, 787 (2009).\\n\\n 15\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 16 of 32\\n\\n\\nSimilarly, using a dog to search for contraband is not related. Rodriguez, 135 S.\\n\\nCt. at 1615. A dog sniff lacks “the same close connection to roadway safety as the\\n\\nordinary inquiries,” and cannot be “fairly characterized as part of the officer’s\\n\\ntraffic mission.” Id. Instead, a dog sniff is “aimed at detect[ing] evidence of\\n\\nordinary criminal wrongdoing.” Id. (alteration in original) (citation omitted).\\n\\n In short, related tasks are the “ordinary inquiries incident to a traffic stop”;\\n\\nunrelated tasks are “other measures aimed at detecting criminal activity more\\n\\ngenerally.” See United States v. Green, 897 F.3d 173, 179 (3d Cir. 2018)\\n\\n(interpreting Rodriguez).\\n\\n That said, unrelated inquiries are permitted so long as they do not add time\\n\\nto the stop. Rodriguez, 135 S. Ct. at 1615 (“An officer . . . may conduct certain\\n\\nunrelated checks during an otherwise lawful traffic stop. But . . . he may not do so\\n\\nin a way that prolongs the stop, absent . . . reasonable suspicion.”). This seems\\n\\ncounterintuitive: how could an officer conduct unrelated inquiries without adding\\n\\nat least some time to the stop? Precedent provides the answer.\\n\\n In Illinois v. Caballes, an officer making a stop radioed dispatch to report it.\\n\\n543 U.S. 405, 406, 125 S. Ct. 834, 836 (2005). A second officer “overheard the\\n\\ntransmission and immediately headed for the scene with his narcotics-detection\\n\\ndog.” Id. The second officer conducted the dog sniff while the first officer “was\\n\\nin the process of writing a warning ticket[.]” Id. Thus, because there were\\n\\n 16\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 17 of 32\\n\\n\\nmultiple officers, one of them was able to conduct an unrelated inquiry without\\n\\nadding time to the stop.\\n\\n Similarly, in Johnson, three officers pulled over a car with three passengers.\\n\\n555 U.S. at 327, 129 S. Ct. at 784. While one officer made the ordinary inquiries\\n\\ninto the driver’s license and registration, another officer questioned the passenger,\\n\\nJohnson. Id. at 327–28. This officer made unrelated inquiries into whether\\n\\nJohnson was affiliated with a gang, id. at 328, but because the first officer\\n\\nsimultaneously followed up on the purpose of the stop, it did not add any time.\\n\\n In this way, the Rodriguez Court suggested that its decision—commanding\\n\\nthat a stop “may last no longer than is necessary” to complete its purpose—was a\\n\\nsimple application of its precedents. 135 S. Ct. at 1614 (“Our decisions in\\n\\nCaballes and Johnson heed these constraints. In both cases, we concluded that the\\n\\nFourth Amendment tolerated certain unrelated investigations that did not lengthen\\n\\nthe roadside detention.” (emphasis added)). But this Court, in conjunction with a\\n\\nnumber of our sister circuits, 11 had interpreted the precedent cases to establish a\\n\\ndifferent standard.\\n\\n\\n 11\\n Almost all of the circuits developed a rule looking to whether the length of the stop as a\\nwhole was reasonable and finding that brief extensions did not transform the stop into an\\nunreasonable seizure. See United States v. McBride, 635 F.3d 879, 883 (7th Cir. 2011); United\\nStates v. Everett, 601 F.3d 484, 492 (6th Cir. 2010); United States v. Harrison, 606 F.3d 42, 45\\n(2d Cir. 2010) abrogated by United States v. Gomez, 877 F.3d 76, 89–90 (2d Cir. 2017); United\\nStates v. Chaney, 584 F.3d 20, 26 (1st Cir. 2009); United States v. Farrior, 535 F.3d 210, 220\\n(4th Cir. 2008) abrogation recognized by United States v. Williams, 808 F.3d 238, 246–47 (4th\\nCir. 2015); United States v. Turvin, 517 F.3d 1097, 1101 (9th Cir. 2008); United States v.\\n 17\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 18 of 32\\n\\n\\n In United States v. Griffin, 696 F.3d 1354 (11th Cir. 2012), we considered\\n\\nthe appropriate standard to decide prolongation cases. As part of that\\n\\nconsideration, we looked to the Supreme Court’s ruling in Johnson,12 where the\\n\\nCourt condoned unrelated inquiries “so long as those inquiries do not measurably\\n\\nextend the duration of the stop.” Griffin, 696 F.3d at 1361 (quoting Johnson, 555\\n\\nU.S. at 333, 129 S. Ct. at 788).13 Based on the language from Johnson, we\\n\\ndetermined that the issue of whether unrelated questions “measurably extended or\\n\\nprolonged the duration of the stop so as to make it unreasonable under the Fourth\\n\\nAmendment” should be decided by an overall reasonableness standard. Id. at 1362\\n\\n(“To address this issue, we do not simply look at the interval of prolongation in\\n\\nisolation, but rather assess the length of the stop as a whole, including any\\n\\nextension of the encounter, by undertaking a fact-bound, context-dependent\\n\\n\\n\\nOlivera-Mendez, 484 F.3d 505, 510–11 (8th Cir. 2007); United States v. Stewart, 473 F.3d 1265,\\n1269 (10th Cir. 2007).\\n 12\\n We also looked to the Supreme Court’s decision in Muehler v. Mena, 544 U.S. 93, 125\\nS. Ct. 1465 (2005). See Griffin, 696 F.3d at 1360–61. In Mena, an officer questioned “a person\\nabout her immigration status while she was detained during the execution of a search warrant—\\nby other law enforcement officers—for deadly weapons and evidence of gang membership.” Id.\\n(citing Mena, 544 U.S. at 95–6, 125 S. Ct. at 1468). Because the questioning did not prolong the\\ndetention, the Court held that the officers did not need independent reasonable suspicion to ask\\nabout her immigration status. Mena, 544 U.S. at 101, 125 S. Ct. at 1471. Thus, Mena is fully\\nconsistent with the idea that unrelated inquiries are permitted only if they do not add time to the\\nstop. The unrelated questions did not prolong the stop because other officers executed the search\\nwarrant.\\n 13\\n The standard from Johnson resembled the one from Caballes, where the Court said a\\ntraffic stop “can become unlawful if it is prolonged beyond the time reasonably required to\\ncomplete that mission.” Caballes, 543 U.S. at 407, 125 S. Ct. at 837.\\n 18\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 19 of 32\\n\\n\\nanalysis of all of the circumstances concerning the stop and the unrelated\\n\\nquestions.” (quotation omitted)).\\n\\n But the Supreme Court rejected the overall reasonableness standard in\\n\\nRodriguez. In that case, the Government argued that it is acceptable to\\n\\n“incremental[ly] prolong a stop” for unrelated inquiries so long as the officer is\\n\\ndiligent “and the overall duration of the stop remains reasonable[.]” Rodriguez,\\n\\n135 S. Ct. at 1616 (alteration in original) (emphasis added) (quotation omitted).\\n\\nThe Court disagreed, noting that the Government’s position would effectively\\n\\ngrant officers “bonus time to pursue an unrelated criminal investigation” if they\\n\\ncomplete the “traffic-related tasks expeditiously[.]” Id. That cannot be right.\\n\\nInstead, courts must look at what an officer actually does: if he “can complete\\n\\ntraffic-based inquiries expeditiously, then that is the amount of ‘time reasonably\\n\\nrequired to complete [the stop’s] mission.’” Id. (alteration in original) (quoting\\n\\nCaballes, 543 U.S. at 407, 125 S. Ct. at 837). And “a traffic stop prolonged\\n\\nbeyond that point is unlawful.” Id. (quotation omitted). Put differently, a stop can\\n\\nbe unlawfully prolonged even if done expeditiously.\\n\\n The Supreme Court also rejected the reasoning from Griffin. In Griffin, an\\n\\nofficer stopped and frisked a person suspected of theft. Griffin, 696 F.3d at 1357.\\n\\nDuring the frisk, the officer asked the suspect: “Hey, what’s in your pocket? Why\\n\\ndo you have batteries?” Id. These questions were “unrelated to the attempted theft\\n\\n 19\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 20 of 32\\n\\n\\nor the frisk for weapons,” id. at 1358, and prolonged the stop by about 30 seconds,\\n\\nid. at 1362. We offered two reasons for finding that the stop was not unlawfully\\n\\nprolonged. Id. First, the officer “acted diligently.” Id. But as explained above,\\n\\ndiligence does not provide an officer with cover to slip in a few unrelated\\n\\nquestions. Second, the officer “had not yet completed his investigation.” Id. The\\n\\nRodriguez Court rebuffed this argument as well: the “critical question . . . is not\\n\\nwhether the [unrelated inquiry] occurs before or after the officer issues the\\n\\nticket . . . but whether conducting the [unrelated inquiry] ‘prolongs’—i.e., adds\\n\\ntime to—‘the stop.’” Rodriguez, 135 S. Ct. at 1616. In other words, an officer can\\n\\nprolong a stop before or after completing the investigation.\\n\\n Neither can Griffin be distinguished because of the time difference.\\n\\nAlthough the unrelated questions in Griffin prolonged the stop by about 30\\n\\nseconds, Griffin, 696 F.3d at 1362, and the dog sniff in Rodriguez prolonged the\\n\\nstop by seven to eight minutes, Rodriguez, 135 S. Ct. at 1613, the Supreme Court\\n\\nwas clear that the length of time is immaterial. The Court rejected the Eighth\\n\\nCircuit’s de minimis rule, under which minor extensions of seizures were tolerated.\\n\\nSee id. at 1615–16. To differentiate Griffin on the grounds that a 30 second delay\\n\\nis less serious than a seven minute delay would revive a standard—be it\\n\\ncharacterized as a de minimis rule or as overall reasonableness—that the Supreme\\n\\nCourt specifically rejected.\\n\\n 20\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 21 of 32\\n\\n\\n Bottom line: Griffin cannot be squared with Rodriguez. Accordingly, we\\n\\nfind that Rodriguez abrogates Griffin.\\n\\n Still, Campbell’s interpretation of Rodriguez goes too far. He suggests, for\\n\\nexample, that the officer unlawfully prolonged the stop by taking a few seconds to\\n\\nretrieve his coat or by looking Campbell in the eye while they conversed rather\\n\\nthan exclusively focusing on writing the ticket. But Rodriguez does not prohibit all\\n\\nconduct that in any way slows the officer from completing the stop as fast as\\n\\nhumanly possible.14 It prohibits prolonging a stop to investigate other crimes. Id.\\n\\nat 1616 (“On-scene investigation into other crimes . . . detours from that\\n\\nmission.”). The problem with the dog sniff was that it was “a measure aimed at\\n\\ndetecting evidence of ordinary criminal wrongdoing.” Id. at 1615 (quotation\\n\\nomitted). And efforts to “detect crime in general or drug trafficking in particular”\\n\\nare “different in kind” from interests in highway and officer safety. Id. at 1616.\\n\\n We think the proper standard emanating from Rodriguez is this: a stop is\\n\\nunlawfully prolonged when an officer, without reasonable suspicion, diverts from\\n\\n\\n\\n 14\\n Of course, the officer could be so slow as to warrant a claim that the officer was not\\ndiligent. As the Rodriguez Court noted, “an officer always has to be reasonably diligent.”\\nRodriguez, 135 S. Ct. at 1616 (quotation omitted). On that question, there is still no bright-line\\ntime limit on how long a stop can last before it becomes an unreasonable seizure. See United\\nStates v. Sharpe, 470 U.S. 675, 685, 105 S. Ct. 1568, 1575 (1985) (“Obviously, if an\\ninvestigative stop continues indefinitely, at some point it can no longer be justified as an\\ninvestigative stop. But our cases impose no rigid time limitation on Terry stops.”); see also\\nPlace, 462 U.S. at 709, 103 S. Ct. at 2646 (“[W]e decline to adopt any outside time limitation for\\na permissible Terry stop[.]”).\\n 21\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 22 of 32\\n\\n\\nthe stop’s purpose and adds time to the stop in order to investigate other crimes.\\n\\nSee id. at 1614–16; see also Greene, 897 F.3d at 179. That is, to unlawfully\\n\\nprolong, the officer must (1) conduct an unrelated inquiry aimed at investigating\\n\\nother crimes (2) that adds time to the stop (3) without reasonable suspicion.\\n\\n Most circuits that have addressed Rodriguez have reached a similar\\n\\nconclusion. See United States v. Stewart, 902 F.3d 664, 674 (7th Cir. 2018)\\n\\n(suggesting that 75 seconds used to call for backup might unlawfully prolong the\\n\\nstop, but the record was inadequate to determine if the officer’s purpose was for\\n\\nsafety or a dog sniff), reh’g en banc denied (Oct. 26, 2018); United States v. Clark,\\n\\n902 F.3d 404, 410–11 (3d Cir. 2018) (finding that 20 seconds of unrelated\\n\\nquestioning prolonged the stop); United States v. Bowman, 884 F.3d 200, 219 (4th\\n\\nCir. 2018) (finding that officer did not have consent or reasonable suspicion to\\n\\nquestion passenger after mission completed); United States v. Gomez, 877 F.3d 76,\\n\\n88–93 (2d Cir. 2017) (concluding that it is not a reasonableness test but whether\\n\\nthe unrelated inquiry adds time to the stop at all, and finding that asking a few\\n\\nquestions about drugs prolonged the stop); United States v. Gorman, 859 F.3d 706,\\n\\n715 (9th Cir. 2017) (holding that unrelated questioning prolonged the stop); United\\n\\nStates v. Macias, 658 F.3d 509, 518–19 (5th Cir. 2011) (deciding that unrelated\\n\\nquestions violated the standard which says an officer can ask such questions only if\\n\\nthey do not extend the duration of the stop). But see United States v. Collazo, 818\\n\\n 22\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 23 of 32\\n\\n\\nF.3d 247, 257–58 (6th Cir. 2016) (using language suggesting an overall\\n\\nreasonableness standard).\\n\\n With this understanding of Rodriguez, we address the case at hand. On\\n\\nappeal, Campbell points to several actions that he maintains prolonged the stop.\\n\\nFirst, he identifies the numerous questions McCannon asked about his travel plans.\\n\\nMcCannon spent approximately two minutes asking Campbell where he was going\\n\\nand why. We find that these questions were related to the purpose of the stop.\\n\\n Generally, questions about travel plans are ordinary inquiries incident to a\\n\\ntraffic stop. See United States v. Dion, 859 F.3d 114, 125 (1st Cir. 2017) (“[O]ur\\n\\ncase law allows an officer carrying out a routine traffic stop . . . to inquire into the\\n\\ndriver’s itinerary.”), cert. denied, 138 S. Ct. 346 (2017); United States v. Bowman,\\n\\n660 F.3d 338, 343 (8th Cir. 2011) (stating that tasks related to a traffic violation\\n\\ninclude “inquiring about the occupants’ destination, route, and purpose”); United\\n\\nStates v. Brigham, 382 F.3d 500, 508 (5th Cir. 2009) (en banc) (“An officer may\\n\\nalso ask about the purpose and itinerary of a driver’s trip during the traffic stop.”);\\n\\nUnited States v. Givan, 320 F.3d 452, 459 (3d Cir. 2003) (“[Q]uestions relating to\\n\\na driver’s travel plans ordinarily fall within the scope of a traffic stop.”); United\\n\\nStates v. Williams, 271 F.3d 1262, 1267 (10th Cir. 2001) (“[W]e have repeatedly\\n\\nheld (as have other circuits) that questions relating to a driver’s travel plans\\n\\nordinarily fall within the scope of a traffic stop.”).\\n\\n 23\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 24 of 32\\n\\n\\n More specifically, in this case, Campbell’s travel plans were relevant to the\\n\\ntraffic violation—a malfunctioning turn signal. In McCannon’s experience, a\\n\\nrapidly blinking turn signal indicates that a bulb is either out or is about to go out.\\n\\nSince Campbell was traveling for a long distance, the chances that his turn signal\\n\\nwould stop working while he was driving increased accordingly. For this reason,\\n\\nasking about Campbell’s travel plans was a related and prudent part of\\n\\ninvestigating his malfunctioning turn signal. 15\\n\\n Campbell also argues that the questions about whether he had contraband in\\n\\nhis car unlawfully prolonged the stop. Just before asking for Campbell’s consent\\n\\nto search the car, McCannon queried:\\n\\n “[Do you have] any counterfeit merchandise that you are taking to\\n your relatives over there in Augusta? And what I mean by that is‐‐any\\n purses? Shoes? Shirts? Any counterfeit or bootleg CDs or DVDs or\\n anything like that? Any illegal alcohol? Any marijuana? Any cocaine?\\n Methamphetamine? Any heroin? Any ecstasy? Nothing like that? You\\n don’t have any dead bodies in your car?”\\n\\nThese questions were not related to a traffic stop for a malfunctioning turn signal\\n\\nand allegedly crossing the fog line. These questions were inquiring about “crime\\n\\nin general [and] drug trafficking in particular.” See Rodriguez, 135 S. Ct. at 1616.\\n\\nThey added 25 seconds to the stop. And the Government does not contend that\\n\\n\\n 15\\n Admittedly, McCannon acknowledged that the reason he took such interest in\\nCampbell’s destination was because that part of Augusta was a high crime area. But in this area\\nof the law, we do not consider officers’ subjective motivations. See Whren, 517 U.S. at 813, 116\\nS. Ct. at 1774.\\n 24\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 25 of 32\\n\\n\\nMcCannon had reasonable suspicion. Consequently, we find that these questions\\n\\nunlawfully prolonged the stop.\\n\\n C.\\n\\n Normally, if an officer unlawfully prolongs a stop, any evidence uncovered\\n\\nas a result would be suppressed. See Davis, 564 U.S. at 231–32, 131 S. Ct. at\\n\\n2423. But the exclusionary rule is subject to exceptions. Id. at 236–38, 131 S. Ct.\\n\\nat 2426–27. 16\\n\\n Davis excepts from the exclusionary rule evidence the police obtain in\\n\\nsearches conducted “in objectively reasonable reliance on binding appellate\\n\\nprecedent[.]” Id. at 232, 131 S. Ct. at 2423–24. This is because the “sole purpose”\\n\\nof the exclusionary rule is to deter Fourth Amendment violations, id. at 236, 131 S.\\n\\nCt. at 2426, and suppressing evidence obtained from a search that was lawful when\\n\\nconducted would “do nothing to deter” police wrongdoing while coming “at a high\\n\\ncost to both the truth and the public safety,” id. at 232, 131 S. Ct. at 2423.\\n\\n At the time of Campbell’s arrest, Griffin was our last word on the issue and\\n\\nthe closest precedent on point. Griffin, 696 F.3d 1354. As noted above, Griffin\\n\\nheld that an officer’s unrelated questioning lasting no more than 30 seconds did not\\n\\n\\n\\n 16\\n As an aside, we cannot use the good faith exception to avoid deciding whether there\\nwas a constitutional violation. To do so would deny the retroactive effect of constitutional\\ncriminal procedure. See Davis, 564 U.S. at 243–44, 131 S. Ct. at 2430–31 (“[T]he retroactive\\napplication of a new rule of substantive Fourth Amendment law raises the question whether a\\nsuppression remedy applies; it does not answer that question.”).\\n 25\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 26 of 32\\n\\n\\nunconstitutionally prolong the stop because the officer “had not yet completed his\\n\\ninvestigation . . . and because he acted diligently[.]” Id. at 1362.\\n\\n The facts here fit squarely within Griffin’s parameters. McCannon lawfully\\n\\nstopped Campbell to investigate a traffic violation. His unrelated questions lasted\\n\\n25 seconds. He asked them before he had completed the stop by issuing the\\n\\nwarning ticket. And the District Court found that McCannon “diligently\\n\\ninvestigated” the traffic violations and “expeditiously” completed the citations.\\n\\nWe cannot say the District Court clearly erred in so finding. As such, Griffin\\n\\ncontrols, and McCannon acted in “objectively reasonable reliance on binding\\n\\nappellate precedent[.]” Davis, 564 U.S. at 232, 131 S. Ct. at 2423–24.\\n\\n However, the Government did not raise the good faith exception on appeal.\\n\\nTypically, when an appellee waives or abandons an affirmative defense, we will\\n\\nnot consider it. See Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316,\\n\\n1318–19 (11th Cir. 2012). But waiver is a prudential doctrine, not a jurisdictional\\n\\nlimitation, and we can reach a waived issue in “exceptional circumstances” at our\\n\\ndiscretion. See Dean Witter Reynolds, Inc. v. Fernandez, 741 F.2d 355, 360 (11th\\n\\nCir. 1984). Here, even though the Government did not present the issue on appeal,\\n\\nboth parties submitted briefs on whether the good faith exception applied to the\\n\\nDistrict Court. Furthermore, the applicability of the exception to this case is\\n\\nplain—Griffin is on all fours with this case—and ignoring it would be a\\n\\n 26\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 27 of 32\\n\\n\\nmiscarriage of justice. The exclusionary rule is meant to deter unlawful conduct\\n\\nby the police; punishing law enforcement for following the law at the time does not\\n\\ndo this. If we ignored the good faith exception, we would be suppressing the truth\\n\\nto no end other than teaching the Government’s counsel a well-deserved lesson.\\n\\nWe decline to do so.\\n\\n III.\\n\\n Deputy McCannon had reasonable suspicion to stop Campbell for a traffic\\n\\nviolation. He unlawfully prolonged the stop when he asked unrelated questions\\n\\nwithout reasonable suspicion about whether Campbell was trafficking contraband.\\n\\nBecause these questions were permitted under binding precedent at the time,\\n\\nhowever, the good faith exception applies and we decline to invoke the\\n\\nexclusionary rule. Thus, there is no need to consider whether Campbell’s consent\\n\\npurged the taint from the unlawfully prolonged seizure.17 Nor do we reach the\\n\\nquestion of whether the consent issue was waived.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 17\\n When a stop is unlawfully prolonged, the seizure becomes unconstitutional, and any\\nsubsequent discovery of evidence produced by that seizure would normally be tainted. However,\\nif the defendant consents to the search after the stop is unlawfully prolonged but before the\\nevidence is discovered, the consent can purge the taint. See United States v. Santa, 236 F.3d\\n662, 676 (11th Cir. 2000). To do this, the government must show (1) that the consent is\\nvoluntary and (2) that the consent is not a product of the illegal seizure. United States v.\\nDelancy, 502 F.3d 1297, 1308 (11th Cir. 2007). Since the evidence from McCannon’s search is\\nadmissible under the good faith exception, we are spared from pursuing this analysis.\\n 27\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 28 of 32\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4356990/\", \"author_raw\": \"TJOFLAT, Circuit Judge:\"}, {\"author\": \"MARTIN, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"MARTIN, Circuit Judge, concurring in part and dissenting in part:\\n\\n The Majority is right that, under the Supreme Court’s decision in Rodriguez\\n\\nv. United States, 575 U.S. __, 135 S. Ct. 1609 (2015), the patrolman here\\n\\nunlawfully prolonged the traffic stop of Mr. Campbell. Maj. Op. at 23–25. It is\\n\\nalso true that our Court’s decision in United States v. Griffin, 696 F.3d 1354 (11th\\n\\nCir. 2012), which established this court’s pre-Rodriguez standard for prolongation,\\n\\ncannot be squared with the Supreme Court’s subsequent ruling in Rodriguez. Maj.\\n\\nOp. at 18–21.\\n\\n I write separately from the Majority, however, because in contrast to the\\n\\nresult reached in the Majority opinion, I believe Mr. Campbell should prevail. I\\n\\nwould not apply the exclusionary rule’s good faith exception to affirm the District\\n\\nCourt’s denial of Mr. Campbell’s suppression motion because the Government\\n\\nnever made that argument on appeal. Indeed, the government did not make this\\n\\nargument despite having been put on notice of the issue by the District Court and\\n\\nhaving ample opportunity to raise it. Due to the government’s waiver of this\\n\\nargument, I would suppress evidence derived from the unlawfully prolonged traffic\\n\\nstop of Mr. Campbell as fruit of the poisonous tree.\\n\\n Under this Court’s precedent, “a party seeking to raise a claim or issue on\\n\\nappeal must plainly and prominently so indicate. Otherwise, the issue—even if\\n\\nproperly preserved at trial—will be considered abandoned.” United States v.\\n\\n 28\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 29 of 32\\n\\n\\nJernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003); see also Access Now, Inc. v.\\n\\nSw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[T]he law is by now well\\n\\nsettled in this Circuit that a legal claim or argument that has not been briefed\\n\\nbefore the court is deemed abandoned and its merits will not be addressed.”). Our\\n\\nCourt regularly applies this rule to bar arguments criminal defendants and pro se\\n\\nplaintiffs made in the trial court but neglected to raise again on appeal. See, e.g.,\\n\\nHall v. Thomas, 611 F.3d 1259, 1284 n.37, 1289 n.40, 1290 n.41 (11th Cir. 2010)\\n\\n(holding a juvenile sentenced to life imprisonment waived certain arguments raised\\n\\nin his habeas petition by failing to reassert them on appeal); Timson v. Sampson,\\n\\n518 F.3d 870, 874 (11th Cir. 2008) (per curiam) (“While we read briefs filed by\\n\\npro se litigants liberally, issues not briefed on appeal by a pro se litigant are\\n\\ndeemed abandoned.” (citation omitted)); cf. United States v. Vanorden, 414 F.3d\\n\\n1321, 1323 & n.1 (11th Cir. 2005) (per curiam) (acknowledging “neither Blakely\\n\\nnor Booker had been decided” at the time a criminal defendant first appealed his\\n\\nsentence, but nonetheless holding the defendant abandoned challenges to his\\n\\nsentence on “Sixth Amendment-Apprendi-Blakely-Booker grounds” by failing to\\n\\nraise the issue in his first appeal).\\n\\n This very case gives insight into this Court’s routine reliance upon waiver to\\n\\nwinnow issues presented in the appeals we consider. Here, both the government\\n\\nand this panel suggested at oral argument that Mr. Campbell might have waived\\n\\n 29\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 30 of 32\\n\\n\\nhis fruit-of-the-poisonous tree argument because, although plainly mentioned in his\\n\\nopening brief, the issue was not separately listed as a claim in Campbell’s\\n\\n“Statement of Issues.” See Oral Arg. at 11:36–11:44 (“We have a hard-and-fast\\n\\nrule in this Circuit. It’s pretty punitive, really. That if you don’t put it in the brief\\n\\nas an issue, we don’t consider it.” (comment of Judge Tjoflat)), 13:40–14:20\\n\\n(government arguing the Court should deem waived issues not prominently raised\\n\\nin a brief, because “[w]hen we’re coming before this Court it’s important that we\\n\\nknow as the responding party, as the appellee, what issues the appellant believes\\n\\nare germane”).\\n\\n Nevertheless, the Majority affirms the District Court’s denial of Mr.\\n\\nCampbell’s suppression motion on the good faith exception, an argument the\\n\\ngovernment never asserted on appeal. To be clear, the government did not argue\\n\\nthe good faith exception in its initial brief, at oral argument, or in any supplemental\\n\\nfiling. Yet the Majority invokes the good faith exception based on briefing the\\n\\nparties submitted in District Court, at the explicit direction of that court.\\n\\n The Majority also holds that the application of the good faith exception to\\n\\nthis case is “plain.” Maj. Op. at 27. I must say, it is not “plain” to me. The\\n\\ngovernment is a sophisticated, often-appearing party before this Court. As such,\\n\\nthe government should be left to the decisions it makes about what arguments it\\n\\nwants us to consider. We know the government was aware of the issue of the\\n\\n 30\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 31 of 32\\n\\n\\n“good faith exception” here, because the District Court specifically requested\\n\\nbriefing on the subject. Under the circumstances, I would not reach out to decide\\n\\nMr. Campbell’s fate on a ground abandoned by the government.\\n\\n Neither would I affirm on the ground Mr. Campbell consented to the\\n\\nunlawfully-prolonged search. The Majority did not reach this issue because it\\n\\nconcluded the evidence was admissible under the good faith exception. Maj. Op.\\n\\nat 5 & nn.5, 17. However, just as the government never raised the good faith\\n\\nexception, it neglected to mention the possibility of Mr. Campbell’s consent until\\n\\nthis Court prompted it to do so. See Order Denying Mot. to Suppress at 14 (“The\\n\\nGovernment, however, does not argue, nor does the evidence establish, that Deputy\\n\\nMcCannon had reasonable suspicion of criminal activity beyond the traffic\\n\\nviolations to detain Defendant or that the encounter had become consensual before\\n\\nDefendant gave consent to search his vehicle.”).1 “The government bears the\\n\\nburden of proving both the existence of consent and that the consent was not a\\n\\nfunction of acquiescence to a claim of lawful authority but rather was given freely\\n\\nand voluntarily.” United States v. Yeary, 740 F.3d 569, 581 (11th Cir. 2014)\\n\\n(quotation marks omitted). The government’s failure to raise Mr. Campbell’s\\n\\n\\n\\n\\n 1\\n Even though the government failed to raise consent before the District Court, the\\nDistrict Court nonetheless briefly addressed the issue, finding that because “Deputy McCannon\\nretained [Mr. Campbell’s] driver’s license throughout the encounter, . . . therefore [Mr.\\nCampbell] was not free to leave.”\\n 31\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 32 of 32\\n\\n\\nconsent before the District Court and on appeal means this argument is also\\n\\nwaived. See Jernigan, 341 F.3d at 1283 n.8.\\n\\n I would not put this Court in the business of resuscitating arguments the\\n\\ngovernment was made aware of, then clearly abandoned. In my experience, this\\n\\nCourt rarely extends the same courtesy to the criminal defendants and pro se\\n\\nlitigants who come before us. Based on the Majority’s conclusion that the\\n\\npatrolman unlawfully prolonged the traffic stop, I would reverse the District\\n\\nCourt’s denial of Mr. Campbell’s suppression motion.\\n\\n I respectfully dissent from the Majority’s decision not to suppress the search\\n\\nof Mr. Campbell’s automobile.\\n\\n\\n\\n\\n 32\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4356990/\", \"author_raw\": \"MARTIN, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"TJOFLAT"},"judge2":{"kind":"string","value":"MARTIN"},"judge3":{"kind":"string","value":"MURPHY"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":4,"string":"4"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":2,"string":"2"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4579737/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":1,"string":"1"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Erickson Meko CAMPBELL, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-01-08\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nCase: 16-10128 Date Filed: 01/08/2019 Page: 1 of 32\n\n\n [PUBLISH]\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 16-10128\n ________________________\n\n D.C. Docket No. 3:14-cr-00046-CAR-CHW-1\n\n\nUNITED STATES OF AMERICA,\n\n\n Plaintiff-Appellee,\n\nversus\n\nERICKSON MEKO CAMPBELL,\n\n Defendant-Appellant.\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Georgia\n ________________________\n\n (January 8, 2019)\n\nBefore TJOFLAT and MARTIN, Circuit Judges, and MURPHY,∗ District Judge.\n\nTJOFLAT, Circuit Judge:\n\n\n\n ∗\n Honorable Stephen J. Murphy III, District Judge for the United States District Court for\nthe Eastern District of Michigan, sitting by designation.\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 2 of 32\n\n\n This appeal presents important questions about the proper confines of a\n\ntraffic stop. First, whether a highway patrolman had reasonable suspicion to stop a\n\nmotorist for a rapidly blinking turn signal. Second, if there was reasonable\n\nsuspicion, whether the seizure became unreasonable when the patrolman prolonged\n\nthe stop by questioning the motorist about matters unrelated to the stop’s mission.\n\nThe District Court concluded that the initial stop was valid and that the questioning\n\nabout unrelated matters did not transform the stop into an unreasonable seizure.\n\nThe District Court therefore denied the motorist’s motion to suppress inculpatory\n\nevidence discovered during a subsequent search.\n\n We agree that there was reasonable suspicion to stop the motorist. But we\n\nfind that under the Supreme Court’s recent decision in Rodriguez v. United States,\n\n135 S. Ct. 1609 (2015), the patrolman did unlawfully prolong the stop. Because\n\nhis actions were permitted under binding case law at the time, however, the good\n\nfaith exception to the exclusionary rule applies. We thus affirm the denial of the\n\nmotion to suppress.\n\n I.\n\n A.\n\n At about 9:00pm on a brisk night in December 2013, Deputy Sheriff Robert\n\nMcCannon was patrolling Interstate 20 in Georgia when he observed a Nissan\n\n\n\n\n 2\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 3 of 32\n\n\nMaxima cross the fog line. 1 McCannon activated the camera on the dashboard of\n\nhis patrol car, and after observing the Maxima cross the fog line a second time and\n\nnoticing that its left turn signal blinked at an unusually rapid pace, he pulled the car\n\nover. He approached the Maxima, introduced himself to the driver, Erickson\n\nCampbell, asked him for his driver’s license, and explained why he had pulled him\n\nover. After determining that the Maxima’s left turn signal was malfunctioning,\n\nMcCannon decided to issue Campbell a warning for failing to comply with two\n\nGeorgia traffic regulations: failure to maintain signal lights in good working\n\ncondition,2 and failure to stay within the driving lane.3 McCannon asked Campbell\n\n\n 1\n The “fog line” is the line on the side of the highway that separates the highway from the\nshoulder, marking the end of the highway’s outside lane.\n 2\n O.C.G.A. § 40–8–26 states, in pertinent part:\n (a) Any motor vehicle may be equipped . . . with the following signal lights or devices:\n\n ....\n\n (2) A light or lights or mechanical signal device capable of clearly indicating any\n intention to turn either to the right or to the left and which shall be visible from\n both the front and the rear.\n\n (b) Every . . . signal light or lights indicating intention to turn shall be visible and\n understandable during daytime and nighttime from a distance of 300 feet from both the\n front and the rear. . . . [S]uch light or lights shall at all times be maintained in good\n working condition.\n 3\n O.C.G.A. § 40–6–48 states, in pertinent part:\n Whenever any roadway has been divided into two or more clearly marked lanes for\n traffic, the following rules, in addition to all others consistent with this Code section,\n shall apply:\n\n (1) A vehicle shall be driven as nearly as practicable entirely within a single lane\n and shall not be moved from such lane until the driver has first ascertained that\n such movement can be made with safety.\n\n 3\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 4 of 32\n\n\nto step out of his car and accompany him to the patrol car while he wrote the\n\nwarning ticket.\n\n While writing the ticket, McCannon asked the dispatcher to run a check on\n\nCampbell’s license and engaged Campbell in conversation. He learned that\n\nCampbell was en route to Augusta to see his family, where Campbell worked, that\n\nCampbell had been arrested sixteen years ago for a DUI, and that Campbell was\n\nnot traveling with a firearm. Then he asked Campbell if he had any counterfeit\n\nCDs or DVDs, illegal alcohol, marijuana, cocaine, methamphetamine, heroin,\n\necstasy, or dead bodies in his car. Campbell answered that he did not. At that\n\ntime, McCannon asked Campbell if he could search his car for any of those items,\n\nand Campbell consented.\n\n While McCannon continued writing the warning ticket, Deputy Patrick\n\nPaquette, who had arrived on the scene a few minutes earlier, began searching the\n\ncar. McCannon finished the warning ticket and had Campbell sign it. After giving\n\nCampbell the ticket and returning his license, McCannon joined Paquette in the\n\nsearch. They found a 9mm semi-automatic pistol, 9mm ammunition, a black\n\nstocking cap, and a camouflage face mask in a bag hidden under the carpet in the\n\nMaxima’s trunk. Confronted, Campbell admitted that he lied about not traveling\n\nwith a firearm because he was a convicted felon and had done time.\n\n B.\n\n 4\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 5 of 32\n\n\n Campbell was indicted for possessing a firearm as a convicted felon, in\n\nviolation of 18 U.S.C. § 922(g)(1). Following his indictment, he asserted that the\n\nevidence found in the search of his car was obtained in violation of the Fourth\n\nAmendment’s prohibition against unreasonable searches and seizures, and moved\n\nthe District Court to suppress it. 4 He presented two arguments in support of his\n\nmotion. First, the seizure was unreasonable because Deputy McCannon lacked\n\nreasonable suspicion to believe that a traffic violation had occurred. Second, even\n\nif there was reasonable suspicion, his seizure became unreasonable when\n\nMcCannon prolonged the stop by asking Campbell questions unrelated to the\n\npurpose of the stop. In turn, the unreasonable seizure tainted any consent he had\n\ngiven the officers to search his car, requiring that the evidence uncovered during\n\nthe search be suppressed. 5\n\n Campbell’s first argument was that his rapidly blinking turn signal did not\n\nsupply reasonable suspicion to make the traffic stop. All that O.C.G.A. § 40–8–26\n\nrequires is that the turn signal “indicate a driver’s intention to change lanes,” and\n\nthe Maxima’s left turn signal was able to do that. That the signal was not blinking\n\n\n\n 4\n The Fourth Amendment states, in pertinent part, that “The right of the people to be\nsecure in their persons, houses, papers, and effects, against unreasonable searches and seizures,\nshall not be violated.” The Fourth Amendment is applicable to the states through the Due\nProcess Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684,\n1692 (1961).\n 5\n Campbell also argued that the search was tainted because it exceeded the scope of any\nconsent he had given, but this issue is not before us on appeal.\n 5\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 6 of 32\n\n\nas designed was irrelevant, Campbell said, because the statute did not require that a\n\nturn signal “(1) blink in unison with the other turn signal, (2) blink at a certain\n\npace, or even, (3) blink as intended by the vehicle manufacturer.” 6\n\n Campbell’s second argument was that McCannon unlawfully prolonged the\n\nstop by asking questions unrelated to the purpose of the stop. Specifically, he\n\nchallenged questions on the following topics:\n\n McCannon asked: (1) where he was going, (2) who he was going to\n see, (3) where he worked, (4) if he had time off work, (5) when his\n last traffic ticket was, (6) if he had ever been arrested, (7) how old his\n car was, (8) how good of a deal he got on his car, (9) whether he had\n any counterfeit merchandise in the car, and, (10) if he had a dead body\n in the car.\n\nRelying on the Supreme Court’s decision in Rodriguez, Campbell maintained that\n\nif McCannon prolonged the stop at all through these inquiries, the stop became\n\nunlawful.\n\n The District Court held an evidentiary hearing on Campbell’s motion to\n\nsuppress. Deputy McCannon, whom the Government called to the stand at the\n\noutset of the hearing, was the sole witness. Aside from his testimony, the Court\n\nhad the benefit of the video created by the dashboard camera. The video portrays\n\nwhat transpired between McCannon’s activation of the camera and Campbell’s\n\narrest, including the questioning Campbell complains of as unrelated to the\n\n\n 6\n Campbell also denied that reasonable suspicion existed for allegedly crossing the fog\nline. The District Court did not reach this argument and neither do we.\n 6\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 7 of 32\n\n\npurpose of the stop. The video’s timestamps indicate precisely when this\n\nquestioning took place. The following bullet points, headed by the timestamps,\n\ndemonstrate this.\n\n • 0:00: McCannon activates the camera.\n • 2:05–16: McCannon provides the Sheriff’s Office dispatcher with the\n car’s license plate number. The dispatcher runs the number and informs\n him that it belongs to Erickson Campbell, an “active felon.”\n • 2:31: McCannon activates his patrol car’s flashing lights.\n • 2:36–58: Campbell pulls over.\n • 3:25–32: McCannon approaches the car from the passenger side and\n requests Campbell’s driver’s license.\n • 3:34–4:42: McCannon explains to Campbell that he stopped him for\n “weaving in his lane” and because his left turn signal was blinking\n rapidly. McCannon says the rapid blinking means “you’ve got a bulb\n out somewhere.” He then checks the lights in the front and back of the\n car, none of which are out. McCannon says it must be that the turn\n signal is “about to go bad,” but that he won’t write a ticket for that—\n just a warning.\n • 4:43–5:09: McCannon asks Campbell where he is going. Campbell\n says he is traveling to Augusta, Georgia. McCannon asks why he is\n going there, and Campbell responds that he is going to see his family.\n • 5:10–13: McCannon asks Campbell to step out of the car and walk with\n him to the patrol car where he will write the warning.\n • 5:48: McCannon begins writing the warning ticket.\n • 6:13–29: McCannon asks Campbell about his family in Augusta,\n adding that he knows a little about Augusta. Campbell says he does not\n know much about Augusta; he just has family there. McCannon\n continues writing the ticket.\n • 6:30–57: McCannon asks Campbell what type of work he does.\n Campbell says that he works for American Woodlawn, building for\n Home Depot and Lowes.\n • 7:07–27: McCannon asks Campbell where his family lives in Augusta.\n Campbell responds that his family lives off of Watson Road.\n McCannon indicates he knows approximately where that is, and\n continues writing the ticket.\n\n\n 7\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 8 of 32\n\n\n • 7:48–8:30: McCannon stops writing to retrieve his jacket from the\n patrol car.\n • 8:32–38: McCannon asks Campbell if he is traveling with a firearm.\n Campbell shakes his head no.\n • 9:07: McCannon acknowledges Sergeant Paquette, who has just\n arrived off camera. 7\n • 9:12–18: McCannon asks Paquette to “come here and let me ask you\n about this location.” McCannon tells Campbell that Paquette is from\n Augusta.\n • 9:31–39: McCannon calls the dispatcher to run a check on Campbell’s\n driver’s license.\n • 9:40–54: McCannon asks Campbell if he had been arrested before.\n Campbell responds yes, about sixteen years ago, for a DUI.\n • 10:00–56: McCannon and Paquette ask Campbell about his destination\n and where his family lives in Augusta, while McCannon continues to\n intermittently write the ticket.\n • 11:16–19: McCannon: “I know I asked you if you have any firearms\n tonight, and you said ‘no.’” Campbell nods and says “yes, sir.”\n • 11:20–45: McCannon: “Any counterfeit merchandise that you’re\n taking to your relatives in Augusta? And what I mean by that is—any\n purses? Shoes? Shirts? Any counterfeit or bootleg CDs or DVDs?\n Anything like that? Any illegal alcohol? Any marijuana? Any cocaine?\n Methamphetamine? Any heroin? Any ecstasy? Nothing like that? You\n don’t have any dead bodies in your car?” Campbell shakes his head or\n otherwise responds in the negative to each question.\n • 11:47–55: McCannon: “I know you said you didn’t have that, and I’m\n not accusing you of anything—can I search it? Can I search your car\n for any of those items I asked you about?” Campbell responds in the\n affirmative, nodding and gesturing toward the car.\n • 12:02–13:05: Paquette pats down Campbell after McCannon indicates\n that he had not yet done so. McCannon continues writing the ticket.\n • 13:06: Paquette begins searching the car.\n • 13:22–44: McCannon asks Campbell to sign the ticket. Campbell does\n so and returns it to McCannon.\n • 14:00: McCannon hands the ticket to Campbell.\n • 16:18–19:58: McCannon and Paquette search the car.\n\n 7\n Sergeant Paquette had observed McCannon’s encounter with Campbell while patrolling\nthe highway, and had pulled over to assist.\n 8\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 9 of 32\n\n\n • 19:58–20:08: Paquette informs McCannon that he has discovered a gun\n and a ski mask.\n • 20:30–21:02: The officers finish searching the car and place Campbell\n in handcuffs.\n • 21:25–40: McCannon informs Campbell of his Miranda rights.\n • 24:12–48: McCannon tells Campbell he is under arrest for felon in\n possession of a firearm. McCannon places Campbell in the rear of his\n patrol car to be taken to the Greene County jail.\n\n From the time McCannon began writing the warning ticket to Campbell’s\n\nconsent to the search, a total of 6 minutes and 7 seconds elapsed. Campbell\n\nconsented 8 minutes and 57 seconds after McCannon made the stop.\n\n C.\n\n At the conclusion of the evidentiary hearing, the District Court asked the\n\nparties for supplemental briefing to address the possible application of the\n\nRodriguez decision. The District Court also requested supplemental briefing on\n\nthe applicability of Davis v. United States, in which the Supreme Court held that\n\nthe Fourth Amendment’s exclusionary rule should not apply when the police act in\n\ngood-faith reliance on binding judicial precedent. 564 U.S. 229, 232, 131 S. Ct.\n\n2419, 2423–24 (2011). After briefing, the Court denied the motion to suppress.\n\n The District Court determined that the rapidly blinking turn signal provided\n\nreasonable suspicion to stop the car. Georgia’s statute requires turn signals to be in\n\ngood working condition. The Court reasoned that McCannon had reasonable\n\nsuspicion to believe that the rapidly blinking turn signal violated this requirement.\n\nThe Court further concluded that McCannon had “reasonable suspicion to initiate\n 9\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 10 of 32\n\n\nthe stop to determine whether the front signal lights were functioning properly.”\n\nThe Court based this conclusion on McCannon’s testimony that in his experience a\n\nrapidly blinking turn signal indicates either a bulb is out or is about to go out.\n\nGiven this finding, there was no need to address the failure-to-maintain-lane\n\nviolation.\n\n After finding reasonable suspicion, the District Court moved to the\n\nprolongation issue. The Court found that precedent entitled McCannon to ask\n\nCampbell about his destination and the purpose of his trip; the year his car was\n\nmade; the last traffic citation he received; his criminal history8; and whether he was\n\ntraveling with a firearm. As the Court put it, “[t]hese questions either addressed the\n\ntraffic violation or were related to legitimate safety concerns.”\n\n But the questions about contraband, the Court said, were not related to the\n\npurpose of the stop. These questions—about counterfeit merchandise, drugs, and\n\ndead bodies—and Campbell’s negative responses, consumed all of 25 seconds.\n\nImmediately thereafter, Campbell consented to the search of his automobile.\n\n Citing our decision in United States v. Griffin, 696 F.3d 1354, 1362 (11th\n\nCir. 2012), the Court said the few seconds “McCannon took to ask a few unrelated\n\nquestions ‘did not transform the stop into an unconstitutionally prolonged\n\n\n 8\n Citing United States v. Purcell, 236 F.3d 1274, 1280 (11th Cir. 2001), the Court held\nthat McCannon “lawfully asked Defendant about his criminal history while he waited on dispatch\nto run [Defendant’s] license information.”\n 10\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 11 of 32\n\n\nseizure.’” The Court concluded that the overall length of the stop was reasonable\n\nand that McCannon conducted the stop expeditiously. Because the seizure was\n\nreasonable, there was no reason for the Court to decide whether the consent was\n\ntainted or the good faith exception to the exclusionary rule applied.\n\n Following the Court’s ruling, Campbell entered a conditional guilty plea,\n\npreserving the right to appeal the denial of his motion to suppress. See Fed. R.\n\nCrim. P. 11(a)(2). He lodged this appeal after the Court imposed a 28-month\n\nsentence.\n\n II.\n\n “A denial of a motion to suppress involves mixed questions of fact and law.”\n\nUnited States v. Spivey, 861 F.3d 1207, 1212 (11th Cir. 2017) (quotation omitted).\n\nWe review the District Court’s findings of fact for clear error, considering all the\n\nevidence in the light most favorable to the prevailing party—in this case, the\n\nGovernment. Id. But we review de novo the District Court’s application of the\n\nlaw to those facts. United States v. Luna-Encinas, 603 F.3d 876, 880 (11th Cir.\n\n2010). Our review is not moored to the evidence presented at the suppression\n\nhearing; we are free to look at the whole record. United States v. Newsome, 475\n\nF.3d 1221, 1224 (11th Cir. 2007).\n\n A.\n\n\n\n\n 11\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 12 of 32\n\n\n A traffic stop is a seizure within the meaning of the Fourth Amendment.\n\nWhren v. United States, 517 U.S. 806, 809–10, 116 S. Ct. 1769, 1772 (1996). To\n\ncomply with the Fourth Amendment, the officer must have reasonable suspicion.\n\nHeien v. North Carolina, 135 S. Ct. 530, 536 (2014) (“All parties agree that to\n\njustify [a traffic stop], officers need only reasonable suspicion[.]” (quotation\n\nomitted)). 9 That is, the officer must have “a particularized and objective basis for\n\nsuspecting the person stopped of criminal activity.” Navarette v. California, 572\n\nU.S. 393, 396, 134 S. Ct. 1683, 1687 (2014). Criminal activity includes even\n\nminor traffic violations. See United States v. Chanthasouxat, 342 F.3d 1271, 1277\n\n(11th Cir. 2003). The question here is whether a rapidly blinking turn signal\n\ncreates reasonable suspicion that a traffic violation has occurred.\n\n Georgia law requires that a vehicle be equipped with right and left turn\n\nsignal lights. O.C.G.A. § 40–8–26(a)(2). Such lights must clearly indicate an\n\nintention to turn right or left and be visible from the front and rear from a distance\n\nof 300 feet. In addition, such lights “shall at all times be maintained in good\n\n\n 9\n The parties and the District Court mention needing reasonable suspicion or probable\ncause. This framing is understandable given the Supreme Court’s declaration in Whren that “the\ndecision to stop an automobile is reasonable where the police have probable cause to believe that\na traffic violation has occurred.” Whren, 517 U.S. at 810, 116 S. Ct. at 1772. We have also\nechoed that standard. See United States v. Pierre, 825 F.3d 1183, 1192 (11th Cir. 2016)\n(“Pursuant to the Fourth Amendment, police may stop a vehicle if they have probable cause to\nbelieve that a traffic violation has occurred.”). But the Supreme Court has since made it plain\nthat reasonable suspicion is all that is required. See Heien, 135 S. Ct. at 536. While probable\ncause is sufficient, only reasonable suspicion is necessary.\n\n\n 12\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 13 of 32\n\n\nworking condition.” Id. §§ 40–8–26(a)(2), (b). As the District Court noted, the\n\ngood working condition requirement is separate. If all the statute demanded is that\n\nthe turn signal be visible from 300 feet and clearly indicate an intention to change\n\nlanes, the good working condition language would be superfluous. It must mean\n\nmore.\n\n Typically, when a turn signal blinks rapidly, it does so to notify the driver\n\nthat a bulb is out or is about to go out. It can also mean that there is a problem\n\nwith the wiring. Campbell maintains that a rapidly blinking turn signal works as\n\nintended—to notify the driver of a potential problem—and equipment that works\n\naccording to design must be in good working condition. But the rapid blinking is\n\nan alert that something, be it an expired bulb or faulty wiring, might not be in good\n\nworking condition. Thus, the rapidly blinking turn signal provided McCannon\n\nwith reasonable suspicion to believe that Campbell’s car was in violation of the\n\ntraffic code. On that basis, 10 we affirm the District Court’s holding that\n\nMcCannon’s initiation of the stop was lawful and proceed to the issue of whether\n\nhis unrelated inquiries turned Campbell’s seizure into a Fourth Amendment\n\nviolation.\n\n\n\n\n 10\n The District Court also noted that even if McCannon was mistaken that the rapidly\nblinking turn signal violated the “good working condition” requirement of O.C.G.A. § 40–8–26,\nhis mistake would be a reasonable mistake of law and thus “give rise to the reasonable suspicion\nnecessary” to validate the stop and uphold the seizure. See Heien, 135 S. Ct. at 536.\n 13\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 14 of 32\n\n\n B.\n\n Even if the police have reasonable suspicion to make a traffic stop, they do\n\nnot have unfettered authority to detain a person indefinitely. The detention is\n\n“limited in scope and duration.” Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct.\n\n1319, 1326 (1983) (plurality opinion). Officers must conduct their investigation\n\ndiligently. See Rodriguez, 135 S. Ct. at 1616 (“[T]he Government acknowledges\n\nthat an officer always has to be reasonably diligent.” (quotation omitted)); see also\n\nUnited States v. Place, 462 U.S. 696, 709, 103 S. Ct. 2637, 2645 (1983) (“[I]n\n\nassessing the effect of the length of the detention, we take into account whether the\n\npolice diligently pursue their investigation.”). And officers cannot unlawfully\n\nprolong a stop. See Rodriguez, 135 S. Ct. at 1614–16.\n\n The Supreme Court expanded on unlawfully prolonged traffic stops in\n\nRodriguez. In that case, police pulled over a vehicle for swerving onto the\n\nshoulder. Id. at 1612. After writing a warning ticket and returning the license,\n\nregistration, and proof of insurance to the driver, the officer made the driver and\n\npassenger wait for seven or eight minutes while he conducted a dog sniff. Id. at\n\n1613. The dog discovered contraband, and the driver sought to suppress the\n\nevidence. Id. On appeal, the Eighth Circuit determined that a seven or eight\n\nminute delay is a permissible de minimis intrusion. Id. at 1614. But the Supreme\n\nCourt rejected the de minimis standard. Id. at 1615–16.\n\n 14\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 15 of 32\n\n\n The Supreme Court explained that a traffic stop is analogous to a Terry stop.\n\nId. at 1614. As such, the scope of the stop “must be carefully tailored to its\n\nunderlying justification.” Id. (quoting Royer, 460 U.S. at 500). Thus, in the\n\ncontext of a traffic stop, “the tolerable duration of police inquiries . . . is\n\ndetermined by the seizure’s mission[.]” Rodriguez, 135 S. Ct. at 1614 (quotation\n\nomitted). The mission of a traffic stop is “to address the traffic violation that\n\nwarranted the stop . . . and attend to related safety concerns[.]” Id. The stop may\n\n“last no longer than is necessary” to complete its mission. Id. (quoting Royer, 460\n\nU.S. at 500). In other words, “[a]uthority for the seizure . . . ends when tasks tied\n\nto the traffic infraction are—or reasonably should have been—completed.” Id.\n\n The question becomes, which tasks are related to the stop’s purpose? The\n\nCourt identified a number of tasks it says are “ordinary inquiries incident to [the\n\ntraffic] stop.” Id. at 1615 (alteration in original). These inquiries include\n\n“checking the driver’s license, determining whether there are outstanding warrants\n\nagainst the driver, and inspecting the automobile’s registration and proof of\n\ninsurance.” Id. Inquiries such as these ensure “that vehicles on the road are\n\noperated safely and responsibly.” Id.\n\n The Court has also identified tasks that are not related to a stop’s purpose.\n\nIn Arizona v. Johnson, for example, the Court said asking about a passenger’s gang\n\naffiliation is not related. See 555 U.S. 323, 332, 129 S. Ct. 781, 787 (2009).\n\n 15\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 16 of 32\n\n\nSimilarly, using a dog to search for contraband is not related. Rodriguez, 135 S.\n\nCt. at 1615. A dog sniff lacks “the same close connection to roadway safety as the\n\nordinary inquiries,” and cannot be “fairly characterized as part of the officer’s\n\ntraffic mission.” Id. Instead, a dog sniff is “aimed at detect[ing] evidence of\n\nordinary criminal wrongdoing.” Id. (alteration in original) (citation omitted).\n\n In short, related tasks are the “ordinary inquiries incident to a traffic stop”;\n\nunrelated tasks are “other measures aimed at detecting criminal activity more\n\ngenerally.” See United States v. Green, 897 F.3d 173, 179 (3d Cir. 2018)\n\n(interpreting Rodriguez).\n\n That said, unrelated inquiries are permitted so long as they do not add time\n\nto the stop. Rodriguez, 135 S. Ct. at 1615 (“An officer . . . may conduct certain\n\nunrelated checks during an otherwise lawful traffic stop. But . . . he may not do so\n\nin a way that prolongs the stop, absent . . . reasonable suspicion.”). This seems\n\ncounterintuitive: how could an officer conduct unrelated inquiries without adding\n\nat least some time to the stop? Precedent provides the answer.\n\n In Illinois v. Caballes, an officer making a stop radioed dispatch to report it.\n\n543 U.S. 405, 406, 125 S. Ct. 834, 836 (2005). A second officer “overheard the\n\ntransmission and immediately headed for the scene with his narcotics-detection\n\ndog.” Id. The second officer conducted the dog sniff while the first officer “was\n\nin the process of writing a warning ticket[.]” Id. Thus, because there were\n\n 16\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 17 of 32\n\n\nmultiple officers, one of them was able to conduct an unrelated inquiry without\n\nadding time to the stop.\n\n Similarly, in Johnson, three officers pulled over a car with three passengers.\n\n555 U.S. at 327, 129 S. Ct. at 784. While one officer made the ordinary inquiries\n\ninto the driver’s license and registration, another officer questioned the passenger,\n\nJohnson. Id. at 327–28. This officer made unrelated inquiries into whether\n\nJohnson was affiliated with a gang, id. at 328, but because the first officer\n\nsimultaneously followed up on the purpose of the stop, it did not add any time.\n\n In this way, the Rodriguez Court suggested that its decision—commanding\n\nthat a stop “may last no longer than is necessary” to complete its purpose—was a\n\nsimple application of its precedents. 135 S. Ct. at 1614 (“Our decisions in\n\nCaballes and Johnson heed these constraints. In both cases, we concluded that the\n\nFourth Amendment tolerated certain unrelated investigations that did not lengthen\n\nthe roadside detention.” (emphasis added)). But this Court, in conjunction with a\n\nnumber of our sister circuits, 11 had interpreted the precedent cases to establish a\n\ndifferent standard.\n\n\n 11\n Almost all of the circuits developed a rule looking to whether the length of the stop as a\nwhole was reasonable and finding that brief extensions did not transform the stop into an\nunreasonable seizure. See United States v. McBride, 635 F.3d 879, 883 (7th Cir. 2011); United\nStates v. Everett, 601 F.3d 484, 492 (6th Cir. 2010); United States v. Harrison, 606 F.3d 42, 45\n(2d Cir. 2010) abrogated by United States v. Gomez, 877 F.3d 76, 89–90 (2d Cir. 2017); United\nStates v. Chaney, 584 F.3d 20, 26 (1st Cir. 2009); United States v. Farrior, 535 F.3d 210, 220\n(4th Cir. 2008) abrogation recognized by United States v. Williams, 808 F.3d 238, 246–47 (4th\nCir. 2015); United States v. Turvin, 517 F.3d 1097, 1101 (9th Cir. 2008); United States v.\n 17\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 18 of 32\n\n\n In United States v. Griffin, 696 F.3d 1354 (11th Cir. 2012), we considered\n\nthe appropriate standard to decide prolongation cases. As part of that\n\nconsideration, we looked to the Supreme Court’s ruling in Johnson,12 where the\n\nCourt condoned unrelated inquiries “so long as those inquiries do not measurably\n\nextend the duration of the stop.” Griffin, 696 F.3d at 1361 (quoting Johnson, 555\n\nU.S. at 333, 129 S. Ct. at 788).13 Based on the language from Johnson, we\n\ndetermined that the issue of whether unrelated questions “measurably extended or\n\nprolonged the duration of the stop so as to make it unreasonable under the Fourth\n\nAmendment” should be decided by an overall reasonableness standard. Id. at 1362\n\n(“To address this issue, we do not simply look at the interval of prolongation in\n\nisolation, but rather assess the length of the stop as a whole, including any\n\nextension of the encounter, by undertaking a fact-bound, context-dependent\n\n\n\nOlivera-Mendez, 484 F.3d 505, 510–11 (8th Cir. 2007); United States v. Stewart, 473 F.3d 1265,\n1269 (10th Cir. 2007).\n 12\n We also looked to the Supreme Court’s decision in Muehler v. Mena, 544 U.S. 93, 125\nS. Ct. 1465 (2005). See Griffin, 696 F.3d at 1360–61. In Mena, an officer questioned “a person\nabout her immigration status while she was detained during the execution of a search warrant—\nby other law enforcement officers—for deadly weapons and evidence of gang membership.” Id.\n(citing Mena, 544 U.S. at 95–6, 125 S. Ct. at 1468). Because the questioning did not prolong the\ndetention, the Court held that the officers did not need independent reasonable suspicion to ask\nabout her immigration status. Mena, 544 U.S. at 101, 125 S. Ct. at 1471. Thus, Mena is fully\nconsistent with the idea that unrelated inquiries are permitted only if they do not add time to the\nstop. The unrelated questions did not prolong the stop because other officers executed the search\nwarrant.\n 13\n The standard from Johnson resembled the one from Caballes, where the Court said a\ntraffic stop “can become unlawful if it is prolonged beyond the time reasonably required to\ncomplete that mission.” Caballes, 543 U.S. at 407, 125 S. Ct. at 837.\n 18\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 19 of 32\n\n\nanalysis of all of the circumstances concerning the stop and the unrelated\n\nquestions.” (quotation omitted)).\n\n But the Supreme Court rejected the overall reasonableness standard in\n\nRodriguez. In that case, the Government argued that it is acceptable to\n\n“incremental[ly] prolong a stop” for unrelated inquiries so long as the officer is\n\ndiligent “and the overall duration of the stop remains reasonable[.]” Rodriguez,\n\n135 S. Ct. at 1616 (alteration in original) (emphasis added) (quotation omitted).\n\nThe Court disagreed, noting that the Government’s position would effectively\n\ngrant officers “bonus time to pursue an unrelated criminal investigation” if they\n\ncomplete the “traffic-related tasks expeditiously[.]” Id. That cannot be right.\n\nInstead, courts must look at what an officer actually does: if he “can complete\n\ntraffic-based inquiries expeditiously, then that is the amount of ‘time reasonably\n\nrequired to complete [the stop’s] mission.’” Id. (alteration in original) (quoting\n\nCaballes, 543 U.S. at 407, 125 S. Ct. at 837). And “a traffic stop prolonged\n\nbeyond that point is unlawful.” Id. (quotation omitted). Put differently, a stop can\n\nbe unlawfully prolonged even if done expeditiously.\n\n The Supreme Court also rejected the reasoning from Griffin. In Griffin, an\n\nofficer stopped and frisked a person suspected of theft. Griffin, 696 F.3d at 1357.\n\nDuring the frisk, the officer asked the suspect: “Hey, what’s in your pocket? Why\n\ndo you have batteries?” Id. These questions were “unrelated to the attempted theft\n\n 19\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 20 of 32\n\n\nor the frisk for weapons,” id. at 1358, and prolonged the stop by about 30 seconds,\n\nid. at 1362. We offered two reasons for finding that the stop was not unlawfully\n\nprolonged. Id. First, the officer “acted diligently.” Id. But as explained above,\n\ndiligence does not provide an officer with cover to slip in a few unrelated\n\nquestions. Second, the officer “had not yet completed his investigation.” Id. The\n\nRodriguez Court rebuffed this argument as well: the “critical question . . . is not\n\nwhether the [unrelated inquiry] occurs before or after the officer issues the\n\nticket . . . but whether conducting the [unrelated inquiry] ‘prolongs’—i.e., adds\n\ntime to—‘the stop.’” Rodriguez, 135 S. Ct. at 1616. In other words, an officer can\n\nprolong a stop before or after completing the investigation.\n\n Neither can Griffin be distinguished because of the time difference.\n\nAlthough the unrelated questions in Griffin prolonged the stop by about 30\n\nseconds, Griffin, 696 F.3d at 1362, and the dog sniff in Rodriguez prolonged the\n\nstop by seven to eight minutes, Rodriguez, 135 S. Ct. at 1613, the Supreme Court\n\nwas clear that the length of time is immaterial. The Court rejected the Eighth\n\nCircuit’s de minimis rule, under which minor extensions of seizures were tolerated.\n\nSee id. at 1615–16. To differentiate Griffin on the grounds that a 30 second delay\n\nis less serious than a seven minute delay would revive a standard—be it\n\ncharacterized as a de minimis rule or as overall reasonableness—that the Supreme\n\nCourt specifically rejected.\n\n 20\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 21 of 32\n\n\n Bottom line: Griffin cannot be squared with Rodriguez. Accordingly, we\n\nfind that Rodriguez abrogates Griffin.\n\n Still, Campbell’s interpretation of Rodriguez goes too far. He suggests, for\n\nexample, that the officer unlawfully prolonged the stop by taking a few seconds to\n\nretrieve his coat or by looking Campbell in the eye while they conversed rather\n\nthan exclusively focusing on writing the ticket. But Rodriguez does not prohibit all\n\nconduct that in any way slows the officer from completing the stop as fast as\n\nhumanly possible.14 It prohibits prolonging a stop to investigate other crimes. Id.\n\nat 1616 (“On-scene investigation into other crimes . . . detours from that\n\nmission.”). The problem with the dog sniff was that it was “a measure aimed at\n\ndetecting evidence of ordinary criminal wrongdoing.” Id. at 1615 (quotation\n\nomitted). And efforts to “detect crime in general or drug trafficking in particular”\n\nare “different in kind” from interests in highway and officer safety. Id. at 1616.\n\n We think the proper standard emanating from Rodriguez is this: a stop is\n\nunlawfully prolonged when an officer, without reasonable suspicion, diverts from\n\n\n\n 14\n Of course, the officer could be so slow as to warrant a claim that the officer was not\ndiligent. As the Rodriguez Court noted, “an officer always has to be reasonably diligent.”\nRodriguez, 135 S. Ct. at 1616 (quotation omitted). On that question, there is still no bright-line\ntime limit on how long a stop can last before it becomes an unreasonable seizure. See United\nStates v. Sharpe, 470 U.S. 675, 685, 105 S. Ct. 1568, 1575 (1985) (“Obviously, if an\ninvestigative stop continues indefinitely, at some point it can no longer be justified as an\ninvestigative stop. But our cases impose no rigid time limitation on Terry stops.”); see also\nPlace, 462 U.S. at 709, 103 S. Ct. at 2646 (“[W]e decline to adopt any outside time limitation for\na permissible Terry stop[.]”).\n 21\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 22 of 32\n\n\nthe stop’s purpose and adds time to the stop in order to investigate other crimes.\n\nSee id. at 1614–16; see also Greene, 897 F.3d at 179. That is, to unlawfully\n\nprolong, the officer must (1) conduct an unrelated inquiry aimed at investigating\n\nother crimes (2) that adds time to the stop (3) without reasonable suspicion.\n\n Most circuits that have addressed Rodriguez have reached a similar\n\nconclusion. See United States v. Stewart, 902 F.3d 664, 674 (7th Cir. 2018)\n\n(suggesting that 75 seconds used to call for backup might unlawfully prolong the\n\nstop, but the record was inadequate to determine if the officer’s purpose was for\n\nsafety or a dog sniff), reh’g en banc denied (Oct. 26, 2018); United States v. Clark,\n\n902 F.3d 404, 410–11 (3d Cir. 2018) (finding that 20 seconds of unrelated\n\nquestioning prolonged the stop); United States v. Bowman, 884 F.3d 200, 219 (4th\n\nCir. 2018) (finding that officer did not have consent or reasonable suspicion to\n\nquestion passenger after mission completed); United States v. Gomez, 877 F.3d 76,\n\n88–93 (2d Cir. 2017) (concluding that it is not a reasonableness test but whether\n\nthe unrelated inquiry adds time to the stop at all, and finding that asking a few\n\nquestions about drugs prolonged the stop); United States v. Gorman, 859 F.3d 706,\n\n715 (9th Cir. 2017) (holding that unrelated questioning prolonged the stop); United\n\nStates v. Macias, 658 F.3d 509, 518–19 (5th Cir. 2011) (deciding that unrelated\n\nquestions violated the standard which says an officer can ask such questions only if\n\nthey do not extend the duration of the stop). But see United States v. Collazo, 818\n\n 22\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 23 of 32\n\n\nF.3d 247, 257–58 (6th Cir. 2016) (using language suggesting an overall\n\nreasonableness standard).\n\n With this understanding of Rodriguez, we address the case at hand. On\n\nappeal, Campbell points to several actions that he maintains prolonged the stop.\n\nFirst, he identifies the numerous questions McCannon asked about his travel plans.\n\nMcCannon spent approximately two minutes asking Campbell where he was going\n\nand why. We find that these questions were related to the purpose of the stop.\n\n Generally, questions about travel plans are ordinary inquiries incident to a\n\ntraffic stop. See United States v. Dion, 859 F.3d 114, 125 (1st Cir. 2017) (“[O]ur\n\ncase law allows an officer carrying out a routine traffic stop . . . to inquire into the\n\ndriver’s itinerary.”), cert. denied, 138 S. Ct. 346 (2017); United States v. Bowman,\n\n660 F.3d 338, 343 (8th Cir. 2011) (stating that tasks related to a traffic violation\n\ninclude “inquiring about the occupants’ destination, route, and purpose”); United\n\nStates v. Brigham, 382 F.3d 500, 508 (5th Cir. 2009) (en banc) (“An officer may\n\nalso ask about the purpose and itinerary of a driver’s trip during the traffic stop.”);\n\nUnited States v. Givan, 320 F.3d 452, 459 (3d Cir. 2003) (“[Q]uestions relating to\n\na driver’s travel plans ordinarily fall within the scope of a traffic stop.”); United\n\nStates v. Williams, 271 F.3d 1262, 1267 (10th Cir. 2001) (“[W]e have repeatedly\n\nheld (as have other circuits) that questions relating to a driver’s travel plans\n\nordinarily fall within the scope of a traffic stop.”).\n\n 23\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 24 of 32\n\n\n More specifically, in this case, Campbell’s travel plans were relevant to the\n\ntraffic violation—a malfunctioning turn signal. In McCannon’s experience, a\n\nrapidly blinking turn signal indicates that a bulb is either out or is about to go out.\n\nSince Campbell was traveling for a long distance, the chances that his turn signal\n\nwould stop working while he was driving increased accordingly. For this reason,\n\nasking about Campbell’s travel plans was a related and prudent part of\n\ninvestigating his malfunctioning turn signal. 15\n\n Campbell also argues that the questions about whether he had contraband in\n\nhis car unlawfully prolonged the stop. Just before asking for Campbell’s consent\n\nto search the car, McCannon queried:\n\n “[Do you have] any counterfeit merchandise that you are taking to\n your relatives over there in Augusta? And what I mean by that is‐‐any\n purses? Shoes? Shirts? Any counterfeit or bootleg CDs or DVDs or\n anything like that? Any illegal alcohol? Any marijuana? Any cocaine?\n Methamphetamine? Any heroin? Any ecstasy? Nothing like that? You\n don’t have any dead bodies in your car?”\n\nThese questions were not related to a traffic stop for a malfunctioning turn signal\n\nand allegedly crossing the fog line. These questions were inquiring about “crime\n\nin general [and] drug trafficking in particular.” See Rodriguez, 135 S. Ct. at 1616.\n\nThey added 25 seconds to the stop. And the Government does not contend that\n\n\n 15\n Admittedly, McCannon acknowledged that the reason he took such interest in\nCampbell’s destination was because that part of Augusta was a high crime area. But in this area\nof the law, we do not consider officers’ subjective motivations. See Whren, 517 U.S. at 813, 116\nS. Ct. at 1774.\n 24\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 25 of 32\n\n\nMcCannon had reasonable suspicion. Consequently, we find that these questions\n\nunlawfully prolonged the stop.\n\n C.\n\n Normally, if an officer unlawfully prolongs a stop, any evidence uncovered\n\nas a result would be suppressed. See Davis, 564 U.S. at 231–32, 131 S. Ct. at\n\n2423. But the exclusionary rule is subject to exceptions. Id. at 236–38, 131 S. Ct.\n\nat 2426–27. 16\n\n Davis excepts from the exclusionary rule evidence the police obtain in\n\nsearches conducted “in objectively reasonable reliance on binding appellate\n\nprecedent[.]” Id. at 232, 131 S. Ct. at 2423–24. This is because the “sole purpose”\n\nof the exclusionary rule is to deter Fourth Amendment violations, id. at 236, 131 S.\n\nCt. at 2426, and suppressing evidence obtained from a search that was lawful when\n\nconducted would “do nothing to deter” police wrongdoing while coming “at a high\n\ncost to both the truth and the public safety,” id. at 232, 131 S. Ct. at 2423.\n\n At the time of Campbell’s arrest, Griffin was our last word on the issue and\n\nthe closest precedent on point. Griffin, 696 F.3d 1354. As noted above, Griffin\n\nheld that an officer’s unrelated questioning lasting no more than 30 seconds did not\n\n\n\n 16\n As an aside, we cannot use the good faith exception to avoid deciding whether there\nwas a constitutional violation. To do so would deny the retroactive effect of constitutional\ncriminal procedure. See Davis, 564 U.S. at 243–44, 131 S. Ct. at 2430–31 (“[T]he retroactive\napplication of a new rule of substantive Fourth Amendment law raises the question whether a\nsuppression remedy applies; it does not answer that question.”).\n 25\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 26 of 32\n\n\nunconstitutionally prolong the stop because the officer “had not yet completed his\n\ninvestigation . . . and because he acted diligently[.]” Id. at 1362.\n\n The facts here fit squarely within Griffin’s parameters. McCannon lawfully\n\nstopped Campbell to investigate a traffic violation. His unrelated questions lasted\n\n25 seconds. He asked them before he had completed the stop by issuing the\n\nwarning ticket. And the District Court found that McCannon “diligently\n\ninvestigated” the traffic violations and “expeditiously” completed the citations.\n\nWe cannot say the District Court clearly erred in so finding. As such, Griffin\n\ncontrols, and McCannon acted in “objectively reasonable reliance on binding\n\nappellate precedent[.]” Davis, 564 U.S. at 232, 131 S. Ct. at 2423–24.\n\n However, the Government did not raise the good faith exception on appeal.\n\nTypically, when an appellee waives or abandons an affirmative defense, we will\n\nnot consider it. See Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316,\n\n1318–19 (11th Cir. 2012). But waiver is a prudential doctrine, not a jurisdictional\n\nlimitation, and we can reach a waived issue in “exceptional circumstances” at our\n\ndiscretion. See Dean Witter Reynolds, Inc. v. Fernandez, 741 F.2d 355, 360 (11th\n\nCir. 1984). Here, even though the Government did not present the issue on appeal,\n\nboth parties submitted briefs on whether the good faith exception applied to the\n\nDistrict Court. Furthermore, the applicability of the exception to this case is\n\nplain—Griffin is on all fours with this case—and ignoring it would be a\n\n 26\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 27 of 32\n\n\nmiscarriage of justice. The exclusionary rule is meant to deter unlawful conduct\n\nby the police; punishing law enforcement for following the law at the time does not\n\ndo this. If we ignored the good faith exception, we would be suppressing the truth\n\nto no end other than teaching the Government’s counsel a well-deserved lesson.\n\nWe decline to do so.\n\n III.\n\n Deputy McCannon had reasonable suspicion to stop Campbell for a traffic\n\nviolation. He unlawfully prolonged the stop when he asked unrelated questions\n\nwithout reasonable suspicion about whether Campbell was trafficking contraband.\n\nBecause these questions were permitted under binding precedent at the time,\n\nhowever, the good faith exception applies and we decline to invoke the\n\nexclusionary rule. Thus, there is no need to consider whether Campbell’s consent\n\npurged the taint from the unlawfully prolonged seizure.17 Nor do we reach the\n\nquestion of whether the consent issue was waived.\n\n AFFIRMED.\n\n\n\n\n 17\n When a stop is unlawfully prolonged, the seizure becomes unconstitutional, and any\nsubsequent discovery of evidence produced by that seizure would normally be tainted. However,\nif the defendant consents to the search after the stop is unlawfully prolonged but before the\nevidence is discovered, the consent can purge the taint. See United States v. Santa, 236 F.3d\n662, 676 (11th Cir. 2000). To do this, the government must show (1) that the consent is\nvoluntary and (2) that the consent is not a product of the illegal seizure. United States v.\nDelancy, 502 F.3d 1297, 1308 (11th Cir. 2007). Since the evidence from McCannon’s search is\nadmissible under the good faith exception, we are spared from pursuing this analysis.\n 27\n\n Case: 16-10128 Date Filed: 01/08/2019 Page: 28 of 32\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Erickson Meko CAMPBELL, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-01-08\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 16-10128 Date Filed: 01/08/2019 Page: 1 of 32\\n\\n\\n [PUBLISH]\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 16-10128\\n ________________________\\n\\n D.C. Docket No. 3:14-cr-00046-CAR-CHW-1\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n\\n Plaintiff-Appellee,\\n\\nversus\\n\\nERICKSON MEKO CAMPBELL,\\n\\n Defendant-Appellant.\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Georgia\\n ________________________\\n\\n (January 8, 2019)\\n\\nBefore TJOFLAT and MARTIN, Circuit Judges, and MURPHY,∗ District Judge.\\n\\nTJOFLAT, Circuit Judge:\\n\\n\\n\\n ∗\\n Honorable Stephen J. Murphy III, District Judge for the United States District Court for\\nthe Eastern District of Michigan, sitting by designation.\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 2 of 32\\n\\n\\n This appeal presents important questions about the proper confines of a\\n\\ntraffic stop. First, whether a highway patrolman had reasonable suspicion to stop a\\n\\nmotorist for a rapidly blinking turn signal. Second, if there was reasonable\\n\\nsuspicion, whether the seizure became unreasonable when the patrolman prolonged\\n\\nthe stop by questioning the motorist about matters unrelated to the stop’s mission.\\n\\nThe District Court concluded that the initial stop was valid and that the questioning\\n\\nabout unrelated matters did not transform the stop into an unreasonable seizure.\\n\\nThe District Court therefore denied the motorist’s motion to suppress inculpatory\\n\\nevidence discovered during a subsequent search.\\n\\n We agree that there was reasonable suspicion to stop the motorist. But we\\n\\nfind that under the Supreme Court’s recent decision in Rodriguez v. United States,\\n\\n135 S. Ct. 1609 (2015), the patrolman did unlawfully prolong the stop. Because\\n\\nhis actions were permitted under binding case law at the time, however, the good\\n\\nfaith exception to the exclusionary rule applies. We thus affirm the denial of the\\n\\nmotion to suppress.\\n\\n I.\\n\\n A.\\n\\n At about 9:00pm on a brisk night in December 2013, Deputy Sheriff Robert\\n\\nMcCannon was patrolling Interstate 20 in Georgia when he observed a Nissan\\n\\n\\n\\n\\n 2\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 3 of 32\\n\\n\\nMaxima cross the fog line. 1 McCannon activated the camera on the dashboard of\\n\\nhis patrol car, and after observing the Maxima cross the fog line a second time and\\n\\nnoticing that its left turn signal blinked at an unusually rapid pace, he pulled the car\\n\\nover. He approached the Maxima, introduced himself to the driver, Erickson\\n\\nCampbell, asked him for his driver’s license, and explained why he had pulled him\\n\\nover. After determining that the Maxima’s left turn signal was malfunctioning,\\n\\nMcCannon decided to issue Campbell a warning for failing to comply with two\\n\\nGeorgia traffic regulations: failure to maintain signal lights in good working\\n\\ncondition,2 and failure to stay within the driving lane.3 McCannon asked Campbell\\n\\n\\n 1\\n The “fog line” is the line on the side of the highway that separates the highway from the\\nshoulder, marking the end of the highway’s outside lane.\\n 2\\n O.C.G.A. § 40–8–26 states, in pertinent part:\\n (a) Any motor vehicle may be equipped . . . with the following signal lights or devices:\\n\\n ....\\n\\n (2) A light or lights or mechanical signal device capable of clearly indicating any\\n intention to turn either to the right or to the left and which shall be visible from\\n both the front and the rear.\\n\\n (b) Every . . . signal light or lights indicating intention to turn shall be visible and\\n understandable during daytime and nighttime from a distance of 300 feet from both the\\n front and the rear. . . . [S]uch light or lights shall at all times be maintained in good\\n working condition.\\n 3\\n O.C.G.A. § 40–6–48 states, in pertinent part:\\n Whenever any roadway has been divided into two or more clearly marked lanes for\\n traffic, the following rules, in addition to all others consistent with this Code section,\\n shall apply:\\n\\n (1) A vehicle shall be driven as nearly as practicable entirely within a single lane\\n and shall not be moved from such lane until the driver has first ascertained that\\n such movement can be made with safety.\\n\\n 3\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 4 of 32\\n\\n\\nto step out of his car and accompany him to the patrol car while he wrote the\\n\\nwarning ticket.\\n\\n While writing the ticket, McCannon asked the dispatcher to run a check on\\n\\nCampbell’s license and engaged Campbell in conversation. He learned that\\n\\nCampbell was en route to Augusta to see his family, where Campbell worked, that\\n\\nCampbell had been arrested sixteen years ago for a DUI, and that Campbell was\\n\\nnot traveling with a firearm. Then he asked Campbell if he had any counterfeit\\n\\nCDs or DVDs, illegal alcohol, marijuana, cocaine, methamphetamine, heroin,\\n\\necstasy, or dead bodies in his car. Campbell answered that he did not. At that\\n\\ntime, McCannon asked Campbell if he could search his car for any of those items,\\n\\nand Campbell consented.\\n\\n While McCannon continued writing the warning ticket, Deputy Patrick\\n\\nPaquette, who had arrived on the scene a few minutes earlier, began searching the\\n\\ncar. McCannon finished the warning ticket and had Campbell sign it. After giving\\n\\nCampbell the ticket and returning his license, McCannon joined Paquette in the\\n\\nsearch. They found a 9mm semi-automatic pistol, 9mm ammunition, a black\\n\\nstocking cap, and a camouflage face mask in a bag hidden under the carpet in the\\n\\nMaxima’s trunk. Confronted, Campbell admitted that he lied about not traveling\\n\\nwith a firearm because he was a convicted felon and had done time.\\n\\n B.\\n\\n 4\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 5 of 32\\n\\n\\n Campbell was indicted for possessing a firearm as a convicted felon, in\\n\\nviolation of 18 U.S.C. § 922(g)(1). Following his indictment, he asserted that the\\n\\nevidence found in the search of his car was obtained in violation of the Fourth\\n\\nAmendment’s prohibition against unreasonable searches and seizures, and moved\\n\\nthe District Court to suppress it. 4 He presented two arguments in support of his\\n\\nmotion. First, the seizure was unreasonable because Deputy McCannon lacked\\n\\nreasonable suspicion to believe that a traffic violation had occurred. Second, even\\n\\nif there was reasonable suspicion, his seizure became unreasonable when\\n\\nMcCannon prolonged the stop by asking Campbell questions unrelated to the\\n\\npurpose of the stop. In turn, the unreasonable seizure tainted any consent he had\\n\\ngiven the officers to search his car, requiring that the evidence uncovered during\\n\\nthe search be suppressed. 5\\n\\n Campbell’s first argument was that his rapidly blinking turn signal did not\\n\\nsupply reasonable suspicion to make the traffic stop. All that O.C.G.A. § 40–8–26\\n\\nrequires is that the turn signal “indicate a driver’s intention to change lanes,” and\\n\\nthe Maxima’s left turn signal was able to do that. That the signal was not blinking\\n\\n\\n\\n 4\\n The Fourth Amendment states, in pertinent part, that “The right of the people to be\\nsecure in their persons, houses, papers, and effects, against unreasonable searches and seizures,\\nshall not be violated.” The Fourth Amendment is applicable to the states through the Due\\nProcess Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684,\\n1692 (1961).\\n 5\\n Campbell also argued that the search was tainted because it exceeded the scope of any\\nconsent he had given, but this issue is not before us on appeal.\\n 5\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 6 of 32\\n\\n\\nas designed was irrelevant, Campbell said, because the statute did not require that a\\n\\nturn signal “(1) blink in unison with the other turn signal, (2) blink at a certain\\n\\npace, or even, (3) blink as intended by the vehicle manufacturer.” 6\\n\\n Campbell’s second argument was that McCannon unlawfully prolonged the\\n\\nstop by asking questions unrelated to the purpose of the stop. Specifically, he\\n\\nchallenged questions on the following topics:\\n\\n McCannon asked: (1) where he was going, (2) who he was going to\\n see, (3) where he worked, (4) if he had time off work, (5) when his\\n last traffic ticket was, (6) if he had ever been arrested, (7) how old his\\n car was, (8) how good of a deal he got on his car, (9) whether he had\\n any counterfeit merchandise in the car, and, (10) if he had a dead body\\n in the car.\\n\\nRelying on the Supreme Court’s decision in Rodriguez, Campbell maintained that\\n\\nif McCannon prolonged the stop at all through these inquiries, the stop became\\n\\nunlawful.\\n\\n The District Court held an evidentiary hearing on Campbell’s motion to\\n\\nsuppress. Deputy McCannon, whom the Government called to the stand at the\\n\\noutset of the hearing, was the sole witness. Aside from his testimony, the Court\\n\\nhad the benefit of the video created by the dashboard camera. The video portrays\\n\\nwhat transpired between McCannon’s activation of the camera and Campbell’s\\n\\narrest, including the questioning Campbell complains of as unrelated to the\\n\\n\\n 6\\n Campbell also denied that reasonable suspicion existed for allegedly crossing the fog\\nline. The District Court did not reach this argument and neither do we.\\n 6\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 7 of 32\\n\\n\\npurpose of the stop. The video’s timestamps indicate precisely when this\\n\\nquestioning took place. The following bullet points, headed by the timestamps,\\n\\ndemonstrate this.\\n\\n • 0:00: McCannon activates the camera.\\n • 2:05–16: McCannon provides the Sheriff’s Office dispatcher with the\\n car’s license plate number. The dispatcher runs the number and informs\\n him that it belongs to Erickson Campbell, an “active felon.”\\n • 2:31: McCannon activates his patrol car’s flashing lights.\\n • 2:36–58: Campbell pulls over.\\n • 3:25–32: McCannon approaches the car from the passenger side and\\n requests Campbell’s driver’s license.\\n • 3:34–4:42: McCannon explains to Campbell that he stopped him for\\n “weaving in his lane” and because his left turn signal was blinking\\n rapidly. McCannon says the rapid blinking means “you’ve got a bulb\\n out somewhere.” He then checks the lights in the front and back of the\\n car, none of which are out. McCannon says it must be that the turn\\n signal is “about to go bad,” but that he won’t write a ticket for that—\\n just a warning.\\n • 4:43–5:09: McCannon asks Campbell where he is going. Campbell\\n says he is traveling to Augusta, Georgia. McCannon asks why he is\\n going there, and Campbell responds that he is going to see his family.\\n • 5:10–13: McCannon asks Campbell to step out of the car and walk with\\n him to the patrol car where he will write the warning.\\n • 5:48: McCannon begins writing the warning ticket.\\n • 6:13–29: McCannon asks Campbell about his family in Augusta,\\n adding that he knows a little about Augusta. Campbell says he does not\\n know much about Augusta; he just has family there. McCannon\\n continues writing the ticket.\\n • 6:30–57: McCannon asks Campbell what type of work he does.\\n Campbell says that he works for American Woodlawn, building for\\n Home Depot and Lowes.\\n • 7:07–27: McCannon asks Campbell where his family lives in Augusta.\\n Campbell responds that his family lives off of Watson Road.\\n McCannon indicates he knows approximately where that is, and\\n continues writing the ticket.\\n\\n\\n 7\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 8 of 32\\n\\n\\n • 7:48–8:30: McCannon stops writing to retrieve his jacket from the\\n patrol car.\\n • 8:32–38: McCannon asks Campbell if he is traveling with a firearm.\\n Campbell shakes his head no.\\n • 9:07: McCannon acknowledges Sergeant Paquette, who has just\\n arrived off camera. 7\\n • 9:12–18: McCannon asks Paquette to “come here and let me ask you\\n about this location.” McCannon tells Campbell that Paquette is from\\n Augusta.\\n • 9:31–39: McCannon calls the dispatcher to run a check on Campbell’s\\n driver’s license.\\n • 9:40–54: McCannon asks Campbell if he had been arrested before.\\n Campbell responds yes, about sixteen years ago, for a DUI.\\n • 10:00–56: McCannon and Paquette ask Campbell about his destination\\n and where his family lives in Augusta, while McCannon continues to\\n intermittently write the ticket.\\n • 11:16–19: McCannon: “I know I asked you if you have any firearms\\n tonight, and you said ‘no.’” Campbell nods and says “yes, sir.”\\n • 11:20–45: McCannon: “Any counterfeit merchandise that you’re\\n taking to your relatives in Augusta? And what I mean by that is—any\\n purses? Shoes? Shirts? Any counterfeit or bootleg CDs or DVDs?\\n Anything like that? Any illegal alcohol? Any marijuana? Any cocaine?\\n Methamphetamine? Any heroin? Any ecstasy? Nothing like that? You\\n don’t have any dead bodies in your car?” Campbell shakes his head or\\n otherwise responds in the negative to each question.\\n • 11:47–55: McCannon: “I know you said you didn’t have that, and I’m\\n not accusing you of anything—can I search it? Can I search your car\\n for any of those items I asked you about?” Campbell responds in the\\n affirmative, nodding and gesturing toward the car.\\n • 12:02–13:05: Paquette pats down Campbell after McCannon indicates\\n that he had not yet done so. McCannon continues writing the ticket.\\n • 13:06: Paquette begins searching the car.\\n • 13:22–44: McCannon asks Campbell to sign the ticket. Campbell does\\n so and returns it to McCannon.\\n • 14:00: McCannon hands the ticket to Campbell.\\n • 16:18–19:58: McCannon and Paquette search the car.\\n\\n 7\\n Sergeant Paquette had observed McCannon’s encounter with Campbell while patrolling\\nthe highway, and had pulled over to assist.\\n 8\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 9 of 32\\n\\n\\n • 19:58–20:08: Paquette informs McCannon that he has discovered a gun\\n and a ski mask.\\n • 20:30–21:02: The officers finish searching the car and place Campbell\\n in handcuffs.\\n • 21:25–40: McCannon informs Campbell of his Miranda rights.\\n • 24:12–48: McCannon tells Campbell he is under arrest for felon in\\n possession of a firearm. McCannon places Campbell in the rear of his\\n patrol car to be taken to the Greene County jail.\\n\\n From the time McCannon began writing the warning ticket to Campbell’s\\n\\nconsent to the search, a total of 6 minutes and 7 seconds elapsed. Campbell\\n\\nconsented 8 minutes and 57 seconds after McCannon made the stop.\\n\\n C.\\n\\n At the conclusion of the evidentiary hearing, the District Court asked the\\n\\nparties for supplemental briefing to address the possible application of the\\n\\nRodriguez decision. The District Court also requested supplemental briefing on\\n\\nthe applicability of Davis v. United States, in which the Supreme Court held that\\n\\nthe Fourth Amendment’s exclusionary rule should not apply when the police act in\\n\\ngood-faith reliance on binding judicial precedent. 564 U.S. 229, 232, 131 S. Ct.\\n\\n2419, 2423–24 (2011). After briefing, the Court denied the motion to suppress.\\n\\n The District Court determined that the rapidly blinking turn signal provided\\n\\nreasonable suspicion to stop the car. Georgia’s statute requires turn signals to be in\\n\\ngood working condition. The Court reasoned that McCannon had reasonable\\n\\nsuspicion to believe that the rapidly blinking turn signal violated this requirement.\\n\\nThe Court further concluded that McCannon had “reasonable suspicion to initiate\\n 9\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 10 of 32\\n\\n\\nthe stop to determine whether the front signal lights were functioning properly.”\\n\\nThe Court based this conclusion on McCannon’s testimony that in his experience a\\n\\nrapidly blinking turn signal indicates either a bulb is out or is about to go out.\\n\\nGiven this finding, there was no need to address the failure-to-maintain-lane\\n\\nviolation.\\n\\n After finding reasonable suspicion, the District Court moved to the\\n\\nprolongation issue. The Court found that precedent entitled McCannon to ask\\n\\nCampbell about his destination and the purpose of his trip; the year his car was\\n\\nmade; the last traffic citation he received; his criminal history8; and whether he was\\n\\ntraveling with a firearm. As the Court put it, “[t]hese questions either addressed the\\n\\ntraffic violation or were related to legitimate safety concerns.”\\n\\n But the questions about contraband, the Court said, were not related to the\\n\\npurpose of the stop. These questions—about counterfeit merchandise, drugs, and\\n\\ndead bodies—and Campbell’s negative responses, consumed all of 25 seconds.\\n\\nImmediately thereafter, Campbell consented to the search of his automobile.\\n\\n Citing our decision in United States v. Griffin, 696 F.3d 1354, 1362 (11th\\n\\nCir. 2012), the Court said the few seconds “McCannon took to ask a few unrelated\\n\\nquestions ‘did not transform the stop into an unconstitutionally prolonged\\n\\n\\n 8\\n Citing United States v. Purcell, 236 F.3d 1274, 1280 (11th Cir. 2001), the Court held\\nthat McCannon “lawfully asked Defendant about his criminal history while he waited on dispatch\\nto run [Defendant’s] license information.”\\n 10\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 11 of 32\\n\\n\\nseizure.’” The Court concluded that the overall length of the stop was reasonable\\n\\nand that McCannon conducted the stop expeditiously. Because the seizure was\\n\\nreasonable, there was no reason for the Court to decide whether the consent was\\n\\ntainted or the good faith exception to the exclusionary rule applied.\\n\\n Following the Court’s ruling, Campbell entered a conditional guilty plea,\\n\\npreserving the right to appeal the denial of his motion to suppress. See Fed. R.\\n\\nCrim. P. 11(a)(2). He lodged this appeal after the Court imposed a 28-month\\n\\nsentence.\\n\\n II.\\n\\n “A denial of a motion to suppress involves mixed questions of fact and law.”\\n\\nUnited States v. Spivey, 861 F.3d 1207, 1212 (11th Cir. 2017) (quotation omitted).\\n\\nWe review the District Court’s findings of fact for clear error, considering all the\\n\\nevidence in the light most favorable to the prevailing party—in this case, the\\n\\nGovernment. Id. But we review de novo the District Court’s application of the\\n\\nlaw to those facts. United States v. Luna-Encinas, 603 F.3d 876, 880 (11th Cir.\\n\\n2010). Our review is not moored to the evidence presented at the suppression\\n\\nhearing; we are free to look at the whole record. United States v. Newsome, 475\\n\\nF.3d 1221, 1224 (11th Cir. 2007).\\n\\n A.\\n\\n\\n\\n\\n 11\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 12 of 32\\n\\n\\n A traffic stop is a seizure within the meaning of the Fourth Amendment.\\n\\nWhren v. United States, 517 U.S. 806, 809–10, 116 S. Ct. 1769, 1772 (1996). To\\n\\ncomply with the Fourth Amendment, the officer must have reasonable suspicion.\\n\\nHeien v. North Carolina, 135 S. Ct. 530, 536 (2014) (“All parties agree that to\\n\\njustify [a traffic stop], officers need only reasonable suspicion[.]” (quotation\\n\\nomitted)). 9 That is, the officer must have “a particularized and objective basis for\\n\\nsuspecting the person stopped of criminal activity.” Navarette v. California, 572\\n\\nU.S. 393, 396, 134 S. Ct. 1683, 1687 (2014). Criminal activity includes even\\n\\nminor traffic violations. See United States v. Chanthasouxat, 342 F.3d 1271, 1277\\n\\n(11th Cir. 2003). The question here is whether a rapidly blinking turn signal\\n\\ncreates reasonable suspicion that a traffic violation has occurred.\\n\\n Georgia law requires that a vehicle be equipped with right and left turn\\n\\nsignal lights. O.C.G.A. § 40–8–26(a)(2). Such lights must clearly indicate an\\n\\nintention to turn right or left and be visible from the front and rear from a distance\\n\\nof 300 feet. In addition, such lights “shall at all times be maintained in good\\n\\n\\n 9\\n The parties and the District Court mention needing reasonable suspicion or probable\\ncause. This framing is understandable given the Supreme Court’s declaration in Whren that “the\\ndecision to stop an automobile is reasonable where the police have probable cause to believe that\\na traffic violation has occurred.” Whren, 517 U.S. at 810, 116 S. Ct. at 1772. We have also\\nechoed that standard. See United States v. Pierre, 825 F.3d 1183, 1192 (11th Cir. 2016)\\n(“Pursuant to the Fourth Amendment, police may stop a vehicle if they have probable cause to\\nbelieve that a traffic violation has occurred.”). But the Supreme Court has since made it plain\\nthat reasonable suspicion is all that is required. See Heien, 135 S. Ct. at 536. While probable\\ncause is sufficient, only reasonable suspicion is necessary.\\n\\n\\n 12\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 13 of 32\\n\\n\\nworking condition.” Id. §§ 40–8–26(a)(2), (b). As the District Court noted, the\\n\\ngood working condition requirement is separate. If all the statute demanded is that\\n\\nthe turn signal be visible from 300 feet and clearly indicate an intention to change\\n\\nlanes, the good working condition language would be superfluous. It must mean\\n\\nmore.\\n\\n Typically, when a turn signal blinks rapidly, it does so to notify the driver\\n\\nthat a bulb is out or is about to go out. It can also mean that there is a problem\\n\\nwith the wiring. Campbell maintains that a rapidly blinking turn signal works as\\n\\nintended—to notify the driver of a potential problem—and equipment that works\\n\\naccording to design must be in good working condition. But the rapid blinking is\\n\\nan alert that something, be it an expired bulb or faulty wiring, might not be in good\\n\\nworking condition. Thus, the rapidly blinking turn signal provided McCannon\\n\\nwith reasonable suspicion to believe that Campbell’s car was in violation of the\\n\\ntraffic code. On that basis, 10 we affirm the District Court’s holding that\\n\\nMcCannon’s initiation of the stop was lawful and proceed to the issue of whether\\n\\nhis unrelated inquiries turned Campbell’s seizure into a Fourth Amendment\\n\\nviolation.\\n\\n\\n\\n\\n 10\\n The District Court also noted that even if McCannon was mistaken that the rapidly\\nblinking turn signal violated the “good working condition” requirement of O.C.G.A. § 40–8–26,\\nhis mistake would be a reasonable mistake of law and thus “give rise to the reasonable suspicion\\nnecessary” to validate the stop and uphold the seizure. See Heien, 135 S. Ct. at 536.\\n 13\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 14 of 32\\n\\n\\n B.\\n\\n Even if the police have reasonable suspicion to make a traffic stop, they do\\n\\nnot have unfettered authority to detain a person indefinitely. The detention is\\n\\n“limited in scope and duration.” Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct.\\n\\n1319, 1326 (1983) (plurality opinion). Officers must conduct their investigation\\n\\ndiligently. See Rodriguez, 135 S. Ct. at 1616 (“[T]he Government acknowledges\\n\\nthat an officer always has to be reasonably diligent.” (quotation omitted)); see also\\n\\nUnited States v. Place, 462 U.S. 696, 709, 103 S. Ct. 2637, 2645 (1983) (“[I]n\\n\\nassessing the effect of the length of the detention, we take into account whether the\\n\\npolice diligently pursue their investigation.”). And officers cannot unlawfully\\n\\nprolong a stop. See Rodriguez, 135 S. Ct. at 1614–16.\\n\\n The Supreme Court expanded on unlawfully prolonged traffic stops in\\n\\nRodriguez. In that case, police pulled over a vehicle for swerving onto the\\n\\nshoulder. Id. at 1612. After writing a warning ticket and returning the license,\\n\\nregistration, and proof of insurance to the driver, the officer made the driver and\\n\\npassenger wait for seven or eight minutes while he conducted a dog sniff. Id. at\\n\\n1613. The dog discovered contraband, and the driver sought to suppress the\\n\\nevidence. Id. On appeal, the Eighth Circuit determined that a seven or eight\\n\\nminute delay is a permissible de minimis intrusion. Id. at 1614. But the Supreme\\n\\nCourt rejected the de minimis standard. Id. at 1615–16.\\n\\n 14\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 15 of 32\\n\\n\\n The Supreme Court explained that a traffic stop is analogous to a Terry stop.\\n\\nId. at 1614. As such, the scope of the stop “must be carefully tailored to its\\n\\nunderlying justification.” Id. (quoting Royer, 460 U.S. at 500). Thus, in the\\n\\ncontext of a traffic stop, “the tolerable duration of police inquiries . . . is\\n\\ndetermined by the seizure’s mission[.]” Rodriguez, 135 S. Ct. at 1614 (quotation\\n\\nomitted). The mission of a traffic stop is “to address the traffic violation that\\n\\nwarranted the stop . . . and attend to related safety concerns[.]” Id. The stop may\\n\\n“last no longer than is necessary” to complete its mission. Id. (quoting Royer, 460\\n\\nU.S. at 500). In other words, “[a]uthority for the seizure . . . ends when tasks tied\\n\\nto the traffic infraction are—or reasonably should have been—completed.” Id.\\n\\n The question becomes, which tasks are related to the stop’s purpose? The\\n\\nCourt identified a number of tasks it says are “ordinary inquiries incident to [the\\n\\ntraffic] stop.” Id. at 1615 (alteration in original). These inquiries include\\n\\n“checking the driver’s license, determining whether there are outstanding warrants\\n\\nagainst the driver, and inspecting the automobile’s registration and proof of\\n\\ninsurance.” Id. Inquiries such as these ensure “that vehicles on the road are\\n\\noperated safely and responsibly.” Id.\\n\\n The Court has also identified tasks that are not related to a stop’s purpose.\\n\\nIn Arizona v. Johnson, for example, the Court said asking about a passenger’s gang\\n\\naffiliation is not related. See 555 U.S. 323, 332, 129 S. Ct. 781, 787 (2009).\\n\\n 15\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 16 of 32\\n\\n\\nSimilarly, using a dog to search for contraband is not related. Rodriguez, 135 S.\\n\\nCt. at 1615. A dog sniff lacks “the same close connection to roadway safety as the\\n\\nordinary inquiries,” and cannot be “fairly characterized as part of the officer’s\\n\\ntraffic mission.” Id. Instead, a dog sniff is “aimed at detect[ing] evidence of\\n\\nordinary criminal wrongdoing.” Id. (alteration in original) (citation omitted).\\n\\n In short, related tasks are the “ordinary inquiries incident to a traffic stop”;\\n\\nunrelated tasks are “other measures aimed at detecting criminal activity more\\n\\ngenerally.” See United States v. Green, 897 F.3d 173, 179 (3d Cir. 2018)\\n\\n(interpreting Rodriguez).\\n\\n That said, unrelated inquiries are permitted so long as they do not add time\\n\\nto the stop. Rodriguez, 135 S. Ct. at 1615 (“An officer . . . may conduct certain\\n\\nunrelated checks during an otherwise lawful traffic stop. But . . . he may not do so\\n\\nin a way that prolongs the stop, absent . . . reasonable suspicion.”). This seems\\n\\ncounterintuitive: how could an officer conduct unrelated inquiries without adding\\n\\nat least some time to the stop? Precedent provides the answer.\\n\\n In Illinois v. Caballes, an officer making a stop radioed dispatch to report it.\\n\\n543 U.S. 405, 406, 125 S. Ct. 834, 836 (2005). A second officer “overheard the\\n\\ntransmission and immediately headed for the scene with his narcotics-detection\\n\\ndog.” Id. The second officer conducted the dog sniff while the first officer “was\\n\\nin the process of writing a warning ticket[.]” Id. Thus, because there were\\n\\n 16\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 17 of 32\\n\\n\\nmultiple officers, one of them was able to conduct an unrelated inquiry without\\n\\nadding time to the stop.\\n\\n Similarly, in Johnson, three officers pulled over a car with three passengers.\\n\\n555 U.S. at 327, 129 S. Ct. at 784. While one officer made the ordinary inquiries\\n\\ninto the driver’s license and registration, another officer questioned the passenger,\\n\\nJohnson. Id. at 327–28. This officer made unrelated inquiries into whether\\n\\nJohnson was affiliated with a gang, id. at 328, but because the first officer\\n\\nsimultaneously followed up on the purpose of the stop, it did not add any time.\\n\\n In this way, the Rodriguez Court suggested that its decision—commanding\\n\\nthat a stop “may last no longer than is necessary” to complete its purpose—was a\\n\\nsimple application of its precedents. 135 S. Ct. at 1614 (“Our decisions in\\n\\nCaballes and Johnson heed these constraints. In both cases, we concluded that the\\n\\nFourth Amendment tolerated certain unrelated investigations that did not lengthen\\n\\nthe roadside detention.” (emphasis added)). But this Court, in conjunction with a\\n\\nnumber of our sister circuits, 11 had interpreted the precedent cases to establish a\\n\\ndifferent standard.\\n\\n\\n 11\\n Almost all of the circuits developed a rule looking to whether the length of the stop as a\\nwhole was reasonable and finding that brief extensions did not transform the stop into an\\nunreasonable seizure. See United States v. McBride, 635 F.3d 879, 883 (7th Cir. 2011); United\\nStates v. Everett, 601 F.3d 484, 492 (6th Cir. 2010); United States v. Harrison, 606 F.3d 42, 45\\n(2d Cir. 2010) abrogated by United States v. Gomez, 877 F.3d 76, 89–90 (2d Cir. 2017); United\\nStates v. Chaney, 584 F.3d 20, 26 (1st Cir. 2009); United States v. Farrior, 535 F.3d 210, 220\\n(4th Cir. 2008) abrogation recognized by United States v. Williams, 808 F.3d 238, 246–47 (4th\\nCir. 2015); United States v. Turvin, 517 F.3d 1097, 1101 (9th Cir. 2008); United States v.\\n 17\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 18 of 32\\n\\n\\n In United States v. Griffin, 696 F.3d 1354 (11th Cir. 2012), we considered\\n\\nthe appropriate standard to decide prolongation cases. As part of that\\n\\nconsideration, we looked to the Supreme Court’s ruling in Johnson,12 where the\\n\\nCourt condoned unrelated inquiries “so long as those inquiries do not measurably\\n\\nextend the duration of the stop.” Griffin, 696 F.3d at 1361 (quoting Johnson, 555\\n\\nU.S. at 333, 129 S. Ct. at 788).13 Based on the language from Johnson, we\\n\\ndetermined that the issue of whether unrelated questions “measurably extended or\\n\\nprolonged the duration of the stop so as to make it unreasonable under the Fourth\\n\\nAmendment” should be decided by an overall reasonableness standard. Id. at 1362\\n\\n(“To address this issue, we do not simply look at the interval of prolongation in\\n\\nisolation, but rather assess the length of the stop as a whole, including any\\n\\nextension of the encounter, by undertaking a fact-bound, context-dependent\\n\\n\\n\\nOlivera-Mendez, 484 F.3d 505, 510–11 (8th Cir. 2007); United States v. Stewart, 473 F.3d 1265,\\n1269 (10th Cir. 2007).\\n 12\\n We also looked to the Supreme Court’s decision in Muehler v. Mena, 544 U.S. 93, 125\\nS. Ct. 1465 (2005). See Griffin, 696 F.3d at 1360–61. In Mena, an officer questioned “a person\\nabout her immigration status while she was detained during the execution of a search warrant—\\nby other law enforcement officers—for deadly weapons and evidence of gang membership.” Id.\\n(citing Mena, 544 U.S. at 95–6, 125 S. Ct. at 1468). Because the questioning did not prolong the\\ndetention, the Court held that the officers did not need independent reasonable suspicion to ask\\nabout her immigration status. Mena, 544 U.S. at 101, 125 S. Ct. at 1471. Thus, Mena is fully\\nconsistent with the idea that unrelated inquiries are permitted only if they do not add time to the\\nstop. The unrelated questions did not prolong the stop because other officers executed the search\\nwarrant.\\n 13\\n The standard from Johnson resembled the one from Caballes, where the Court said a\\ntraffic stop “can become unlawful if it is prolonged beyond the time reasonably required to\\ncomplete that mission.” Caballes, 543 U.S. at 407, 125 S. Ct. at 837.\\n 18\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 19 of 32\\n\\n\\nanalysis of all of the circumstances concerning the stop and the unrelated\\n\\nquestions.” (quotation omitted)).\\n\\n But the Supreme Court rejected the overall reasonableness standard in\\n\\nRodriguez. In that case, the Government argued that it is acceptable to\\n\\n“incremental[ly] prolong a stop” for unrelated inquiries so long as the officer is\\n\\ndiligent “and the overall duration of the stop remains reasonable[.]” Rodriguez,\\n\\n135 S. Ct. at 1616 (alteration in original) (emphasis added) (quotation omitted).\\n\\nThe Court disagreed, noting that the Government’s position would effectively\\n\\ngrant officers “bonus time to pursue an unrelated criminal investigation” if they\\n\\ncomplete the “traffic-related tasks expeditiously[.]” Id. That cannot be right.\\n\\nInstead, courts must look at what an officer actually does: if he “can complete\\n\\ntraffic-based inquiries expeditiously, then that is the amount of ‘time reasonably\\n\\nrequired to complete [the stop’s] mission.’” Id. (alteration in original) (quoting\\n\\nCaballes, 543 U.S. at 407, 125 S. Ct. at 837). And “a traffic stop prolonged\\n\\nbeyond that point is unlawful.” Id. (quotation omitted). Put differently, a stop can\\n\\nbe unlawfully prolonged even if done expeditiously.\\n\\n The Supreme Court also rejected the reasoning from Griffin. In Griffin, an\\n\\nofficer stopped and frisked a person suspected of theft. Griffin, 696 F.3d at 1357.\\n\\nDuring the frisk, the officer asked the suspect: “Hey, what’s in your pocket? Why\\n\\ndo you have batteries?” Id. These questions were “unrelated to the attempted theft\\n\\n 19\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 20 of 32\\n\\n\\nor the frisk for weapons,” id. at 1358, and prolonged the stop by about 30 seconds,\\n\\nid. at 1362. We offered two reasons for finding that the stop was not unlawfully\\n\\nprolonged. Id. First, the officer “acted diligently.” Id. But as explained above,\\n\\ndiligence does not provide an officer with cover to slip in a few unrelated\\n\\nquestions. Second, the officer “had not yet completed his investigation.” Id. The\\n\\nRodriguez Court rebuffed this argument as well: the “critical question . . . is not\\n\\nwhether the [unrelated inquiry] occurs before or after the officer issues the\\n\\nticket . . . but whether conducting the [unrelated inquiry] ‘prolongs’—i.e., adds\\n\\ntime to—‘the stop.’” Rodriguez, 135 S. Ct. at 1616. In other words, an officer can\\n\\nprolong a stop before or after completing the investigation.\\n\\n Neither can Griffin be distinguished because of the time difference.\\n\\nAlthough the unrelated questions in Griffin prolonged the stop by about 30\\n\\nseconds, Griffin, 696 F.3d at 1362, and the dog sniff in Rodriguez prolonged the\\n\\nstop by seven to eight minutes, Rodriguez, 135 S. Ct. at 1613, the Supreme Court\\n\\nwas clear that the length of time is immaterial. The Court rejected the Eighth\\n\\nCircuit’s de minimis rule, under which minor extensions of seizures were tolerated.\\n\\nSee id. at 1615–16. To differentiate Griffin on the grounds that a 30 second delay\\n\\nis less serious than a seven minute delay would revive a standard—be it\\n\\ncharacterized as a de minimis rule or as overall reasonableness—that the Supreme\\n\\nCourt specifically rejected.\\n\\n 20\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 21 of 32\\n\\n\\n Bottom line: Griffin cannot be squared with Rodriguez. Accordingly, we\\n\\nfind that Rodriguez abrogates Griffin.\\n\\n Still, Campbell’s interpretation of Rodriguez goes too far. He suggests, for\\n\\nexample, that the officer unlawfully prolonged the stop by taking a few seconds to\\n\\nretrieve his coat or by looking Campbell in the eye while they conversed rather\\n\\nthan exclusively focusing on writing the ticket. But Rodriguez does not prohibit all\\n\\nconduct that in any way slows the officer from completing the stop as fast as\\n\\nhumanly possible.14 It prohibits prolonging a stop to investigate other crimes. Id.\\n\\nat 1616 (“On-scene investigation into other crimes . . . detours from that\\n\\nmission.”). The problem with the dog sniff was that it was “a measure aimed at\\n\\ndetecting evidence of ordinary criminal wrongdoing.” Id. at 1615 (quotation\\n\\nomitted). And efforts to “detect crime in general or drug trafficking in particular”\\n\\nare “different in kind” from interests in highway and officer safety. Id. at 1616.\\n\\n We think the proper standard emanating from Rodriguez is this: a stop is\\n\\nunlawfully prolonged when an officer, without reasonable suspicion, diverts from\\n\\n\\n\\n 14\\n Of course, the officer could be so slow as to warrant a claim that the officer was not\\ndiligent. As the Rodriguez Court noted, “an officer always has to be reasonably diligent.”\\nRodriguez, 135 S. Ct. at 1616 (quotation omitted). On that question, there is still no bright-line\\ntime limit on how long a stop can last before it becomes an unreasonable seizure. See United\\nStates v. Sharpe, 470 U.S. 675, 685, 105 S. Ct. 1568, 1575 (1985) (“Obviously, if an\\ninvestigative stop continues indefinitely, at some point it can no longer be justified as an\\ninvestigative stop. But our cases impose no rigid time limitation on Terry stops.”); see also\\nPlace, 462 U.S. at 709, 103 S. Ct. at 2646 (“[W]e decline to adopt any outside time limitation for\\na permissible Terry stop[.]”).\\n 21\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 22 of 32\\n\\n\\nthe stop’s purpose and adds time to the stop in order to investigate other crimes.\\n\\nSee id. at 1614–16; see also Greene, 897 F.3d at 179. That is, to unlawfully\\n\\nprolong, the officer must (1) conduct an unrelated inquiry aimed at investigating\\n\\nother crimes (2) that adds time to the stop (3) without reasonable suspicion.\\n\\n Most circuits that have addressed Rodriguez have reached a similar\\n\\nconclusion. See United States v. Stewart, 902 F.3d 664, 674 (7th Cir. 2018)\\n\\n(suggesting that 75 seconds used to call for backup might unlawfully prolong the\\n\\nstop, but the record was inadequate to determine if the officer’s purpose was for\\n\\nsafety or a dog sniff), reh’g en banc denied (Oct. 26, 2018); United States v. Clark,\\n\\n902 F.3d 404, 410–11 (3d Cir. 2018) (finding that 20 seconds of unrelated\\n\\nquestioning prolonged the stop); United States v. Bowman, 884 F.3d 200, 219 (4th\\n\\nCir. 2018) (finding that officer did not have consent or reasonable suspicion to\\n\\nquestion passenger after mission completed); United States v. Gomez, 877 F.3d 76,\\n\\n88–93 (2d Cir. 2017) (concluding that it is not a reasonableness test but whether\\n\\nthe unrelated inquiry adds time to the stop at all, and finding that asking a few\\n\\nquestions about drugs prolonged the stop); United States v. Gorman, 859 F.3d 706,\\n\\n715 (9th Cir. 2017) (holding that unrelated questioning prolonged the stop); United\\n\\nStates v. Macias, 658 F.3d 509, 518–19 (5th Cir. 2011) (deciding that unrelated\\n\\nquestions violated the standard which says an officer can ask such questions only if\\n\\nthey do not extend the duration of the stop). But see United States v. Collazo, 818\\n\\n 22\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 23 of 32\\n\\n\\nF.3d 247, 257–58 (6th Cir. 2016) (using language suggesting an overall\\n\\nreasonableness standard).\\n\\n With this understanding of Rodriguez, we address the case at hand. On\\n\\nappeal, Campbell points to several actions that he maintains prolonged the stop.\\n\\nFirst, he identifies the numerous questions McCannon asked about his travel plans.\\n\\nMcCannon spent approximately two minutes asking Campbell where he was going\\n\\nand why. We find that these questions were related to the purpose of the stop.\\n\\n Generally, questions about travel plans are ordinary inquiries incident to a\\n\\ntraffic stop. See United States v. Dion, 859 F.3d 114, 125 (1st Cir. 2017) (“[O]ur\\n\\ncase law allows an officer carrying out a routine traffic stop . . . to inquire into the\\n\\ndriver’s itinerary.”), cert. denied, 138 S. Ct. 346 (2017); United States v. Bowman,\\n\\n660 F.3d 338, 343 (8th Cir. 2011) (stating that tasks related to a traffic violation\\n\\ninclude “inquiring about the occupants’ destination, route, and purpose”); United\\n\\nStates v. Brigham, 382 F.3d 500, 508 (5th Cir. 2009) (en banc) (“An officer may\\n\\nalso ask about the purpose and itinerary of a driver’s trip during the traffic stop.”);\\n\\nUnited States v. Givan, 320 F.3d 452, 459 (3d Cir. 2003) (“[Q]uestions relating to\\n\\na driver’s travel plans ordinarily fall within the scope of a traffic stop.”); United\\n\\nStates v. Williams, 271 F.3d 1262, 1267 (10th Cir. 2001) (“[W]e have repeatedly\\n\\nheld (as have other circuits) that questions relating to a driver’s travel plans\\n\\nordinarily fall within the scope of a traffic stop.”).\\n\\n 23\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 24 of 32\\n\\n\\n More specifically, in this case, Campbell’s travel plans were relevant to the\\n\\ntraffic violation—a malfunctioning turn signal. In McCannon’s experience, a\\n\\nrapidly blinking turn signal indicates that a bulb is either out or is about to go out.\\n\\nSince Campbell was traveling for a long distance, the chances that his turn signal\\n\\nwould stop working while he was driving increased accordingly. For this reason,\\n\\nasking about Campbell’s travel plans was a related and prudent part of\\n\\ninvestigating his malfunctioning turn signal. 15\\n\\n Campbell also argues that the questions about whether he had contraband in\\n\\nhis car unlawfully prolonged the stop. Just before asking for Campbell’s consent\\n\\nto search the car, McCannon queried:\\n\\n “[Do you have] any counterfeit merchandise that you are taking to\\n your relatives over there in Augusta? And what I mean by that is‐‐any\\n purses? Shoes? Shirts? Any counterfeit or bootleg CDs or DVDs or\\n anything like that? Any illegal alcohol? Any marijuana? Any cocaine?\\n Methamphetamine? Any heroin? Any ecstasy? Nothing like that? You\\n don’t have any dead bodies in your car?”\\n\\nThese questions were not related to a traffic stop for a malfunctioning turn signal\\n\\nand allegedly crossing the fog line. These questions were inquiring about “crime\\n\\nin general [and] drug trafficking in particular.” See Rodriguez, 135 S. Ct. at 1616.\\n\\nThey added 25 seconds to the stop. And the Government does not contend that\\n\\n\\n 15\\n Admittedly, McCannon acknowledged that the reason he took such interest in\\nCampbell’s destination was because that part of Augusta was a high crime area. But in this area\\nof the law, we do not consider officers’ subjective motivations. See Whren, 517 U.S. at 813, 116\\nS. Ct. at 1774.\\n 24\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 25 of 32\\n\\n\\nMcCannon had reasonable suspicion. Consequently, we find that these questions\\n\\nunlawfully prolonged the stop.\\n\\n C.\\n\\n Normally, if an officer unlawfully prolongs a stop, any evidence uncovered\\n\\nas a result would be suppressed. See Davis, 564 U.S. at 231–32, 131 S. Ct. at\\n\\n2423. But the exclusionary rule is subject to exceptions. Id. at 236–38, 131 S. Ct.\\n\\nat 2426–27. 16\\n\\n Davis excepts from the exclusionary rule evidence the police obtain in\\n\\nsearches conducted “in objectively reasonable reliance on binding appellate\\n\\nprecedent[.]” Id. at 232, 131 S. Ct. at 2423–24. This is because the “sole purpose”\\n\\nof the exclusionary rule is to deter Fourth Amendment violations, id. at 236, 131 S.\\n\\nCt. at 2426, and suppressing evidence obtained from a search that was lawful when\\n\\nconducted would “do nothing to deter” police wrongdoing while coming “at a high\\n\\ncost to both the truth and the public safety,” id. at 232, 131 S. Ct. at 2423.\\n\\n At the time of Campbell’s arrest, Griffin was our last word on the issue and\\n\\nthe closest precedent on point. Griffin, 696 F.3d 1354. As noted above, Griffin\\n\\nheld that an officer’s unrelated questioning lasting no more than 30 seconds did not\\n\\n\\n\\n 16\\n As an aside, we cannot use the good faith exception to avoid deciding whether there\\nwas a constitutional violation. To do so would deny the retroactive effect of constitutional\\ncriminal procedure. See Davis, 564 U.S. at 243–44, 131 S. Ct. at 2430–31 (“[T]he retroactive\\napplication of a new rule of substantive Fourth Amendment law raises the question whether a\\nsuppression remedy applies; it does not answer that question.”).\\n 25\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 26 of 32\\n\\n\\nunconstitutionally prolong the stop because the officer “had not yet completed his\\n\\ninvestigation . . . and because he acted diligently[.]” Id. at 1362.\\n\\n The facts here fit squarely within Griffin’s parameters. McCannon lawfully\\n\\nstopped Campbell to investigate a traffic violation. His unrelated questions lasted\\n\\n25 seconds. He asked them before he had completed the stop by issuing the\\n\\nwarning ticket. And the District Court found that McCannon “diligently\\n\\ninvestigated” the traffic violations and “expeditiously” completed the citations.\\n\\nWe cannot say the District Court clearly erred in so finding. As such, Griffin\\n\\ncontrols, and McCannon acted in “objectively reasonable reliance on binding\\n\\nappellate precedent[.]” Davis, 564 U.S. at 232, 131 S. Ct. at 2423–24.\\n\\n However, the Government did not raise the good faith exception on appeal.\\n\\nTypically, when an appellee waives or abandons an affirmative defense, we will\\n\\nnot consider it. See Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316,\\n\\n1318–19 (11th Cir. 2012). But waiver is a prudential doctrine, not a jurisdictional\\n\\nlimitation, and we can reach a waived issue in “exceptional circumstances” at our\\n\\ndiscretion. See Dean Witter Reynolds, Inc. v. Fernandez, 741 F.2d 355, 360 (11th\\n\\nCir. 1984). Here, even though the Government did not present the issue on appeal,\\n\\nboth parties submitted briefs on whether the good faith exception applied to the\\n\\nDistrict Court. Furthermore, the applicability of the exception to this case is\\n\\nplain—Griffin is on all fours with this case—and ignoring it would be a\\n\\n 26\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 27 of 32\\n\\n\\nmiscarriage of justice. The exclusionary rule is meant to deter unlawful conduct\\n\\nby the police; punishing law enforcement for following the law at the time does not\\n\\ndo this. If we ignored the good faith exception, we would be suppressing the truth\\n\\nto no end other than teaching the Government’s counsel a well-deserved lesson.\\n\\nWe decline to do so.\\n\\n III.\\n\\n Deputy McCannon had reasonable suspicion to stop Campbell for a traffic\\n\\nviolation. He unlawfully prolonged the stop when he asked unrelated questions\\n\\nwithout reasonable suspicion about whether Campbell was trafficking contraband.\\n\\nBecause these questions were permitted under binding precedent at the time,\\n\\nhowever, the good faith exception applies and we decline to invoke the\\n\\nexclusionary rule. Thus, there is no need to consider whether Campbell’s consent\\n\\npurged the taint from the unlawfully prolonged seizure.17 Nor do we reach the\\n\\nquestion of whether the consent issue was waived.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 17\\n When a stop is unlawfully prolonged, the seizure becomes unconstitutional, and any\\nsubsequent discovery of evidence produced by that seizure would normally be tainted. However,\\nif the defendant consents to the search after the stop is unlawfully prolonged but before the\\nevidence is discovered, the consent can purge the taint. See United States v. Santa, 236 F.3d\\n662, 676 (11th Cir. 2000). To do this, the government must show (1) that the consent is\\nvoluntary and (2) that the consent is not a product of the illegal seizure. United States v.\\nDelancy, 502 F.3d 1297, 1308 (11th Cir. 2007). Since the evidence from McCannon’s search is\\nadmissible under the good faith exception, we are spared from pursuing this analysis.\\n 27\\n\\n Case: 16-10128 Date Filed: 01/08/2019 Page: 28 of 32\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":397,"cells":{"id":{"kind":"number","value":4581007,"string":"4,581,007"},"name":{"kind":"string","value":"Mark A. SACCULLO, as Successor Trustee of the Anthony L. Saccullo Irrevocable Trust for the Benefit of Mark A. Saccullo, Plaintiff-Counter Defendant-Appellant, Dorothy A. Saccullo, Counter Defendant-Appellant, Tax Collector of Charlotte County, Florida, Counter Defendant, v. UNITED STATES OF AMERICA, Defendant-Counter Claimant-Appellee."},"name_abbreviation":{"kind":"string","value":"Mark A. Saccullo v. United States"},"decision_date":{"kind":"string","value":"2019-01-11"},"docket_number":{"kind":"string","value":"17-14546"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Marcus, Newsom, Anderson\", \"parties\": \"\", \"opinions\": [{\"author\": \"NEWSOM, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-14546 Date Filed: 01/11/2019 Page: 1 of 15\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-14546\\n ________________________\\n\\n D.C. Docket No. 8:16-cv-00410-CEH-TBM\\n\\n\\nMARK A. SACCULLO,\\nas Successor Trustee of the Anthony L.\\nSaccullo Irrevocable Trust for the benefit\\nof Mark A. Saccullo,\\n\\n Plaintiff-Counter Defendant-Appellant,\\n\\nDOROTHY A. SACCULLO,\\n\\n Counter Defendant-Appellant,\\n\\nTAX COLLECTOR OF CHARLOTTE\\nCOUNTY, FLORIDA,\\n\\n Counter Defendant,\\n\\n versus\\n\\nUNITED STATES OF AMERICA,\\n\\n Defendant-Counter Claimant-Appellee.\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n (January 11, 2019)\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 2 of 15\\n\\n\\nBefore MARCUS, NEWSOM, and ANDERSON, Circuit Judges.\\n\\nNEWSOM, Circuit Judge:\\n\\n One relic of the English legal tradition holds that, as a general matter, the\\n\\nsovereign (here, the United States) is not bound by statutes of limitation or subject\\n\\nto laches. The question before us is how this vestigial rule—nullum tempus\\n\\noccurrit regi, or, as the parties here call it, the “Summerlin” principle, after United\\n\\nStates v. Summerlin, 310 U.S. 414, 416 (1940)—interacts with a Florida law\\n\\ndesigned to correct technical flaws in property-conveyance deeds.\\n\\n At issue in this case is whether Fla. Stat. § 95.231, which operates to cure\\n\\ncertain defective deeds after the passage of five years, applies to a parcel on which\\n\\nthe United States has asserted a federal estate-tax lien. Here’s the (very) short\\n\\nstory: In 1998, the appellant’s aging father executed a deed conveying property to\\n\\na trust created for the appellant’s benefit—but unfortunately, failed to procure a\\n\\nsecond witness, as Florida law requires. Following the appellant’s father’s death in\\n\\n2005, the United States assessed an estate tax on the property—which it said\\n\\nremained in the estate despite the attempted conveyance—and, when the tax\\n\\nremained unpaid, imposed a series of liens. The question here is whether\\n\\nSummerlin forestalls enforcement of § 95.231’s five-year-cure provision to defeat\\n\\nthe United States’ estate-tax claim. We hold that it does not. Section 95.231 cured\\n\\nthe deed in question, thereby effectuating the intended conveyance and transferring\\n\\n\\n 2\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 3 of 15\\n\\n\\nthe property out of the father’s estate, well before the United States’ claim could\\n\\nhave vested. The Florida statute, therefore, didn’t cut off a preexisting claim in a\\n\\nway that might offend Summerlin; rather, it simply—and validly—prevented that\\n\\nclaim from coming into being in the first place.\\n\\n I\\n\\n A\\n\\n Mark Saccullo has lived on the property at issue here, the site of his\\n\\nchildhood home, since 1991. In 1998, Mark’s father Anthony, who owned what\\n\\nwe’ll call “the Property” in fee simple, executed a deed that purported to convey it\\n\\nto the “Anthony L. Saccullo Irrevocable Trust for the benefit of Mark A.\\n\\nSaccullo.” For the most part, the deed conformed to the necessary formalities, and\\n\\nit was properly notarized and recorded in December 1998. There was just one\\n\\nglitch: the deed bore the signature of only one witness, not the two required by Fla.\\n\\nStat. § 689.01. That failure effectively negated the conveyance—at least for the\\n\\ntime being, but more on that later—and despite the deed, Anthony retained title to\\n\\nthe Property.\\n\\n When Anthony died in December 2005, Mark became the trustee of his\\n\\nfather’s irrevocable trust. Mark filed an estate-tax return and—mistakenly it now\\n\\nseems—included the Property among the estate’s assets. In 2007, the IRS assessed\\n\\nan estate tax of almost $1.4 million, apparently under the impression that the estate\\n\\n\\n 3\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 4 of 15\\n\\n\\nstill owned the Property. Shortly thereafter, Mark, acting in his capacity as trustee,\\n\\nconveyed the Property via quitclaim deed to himself and his wife.\\n\\n Because the estate-tax liability remained delinquent, the government filed\\n\\ntwo tax-lien notices with Charlotte County, Florida—one against the estate in\\n\\n2012, and another against the Property in 2015. The IRS later administratively\\n\\nseized the Property and unsuccessfully sought to sell it, as the estate-tax liability\\n\\nincreased to $1.6 million.\\n\\n B\\n\\n After the administrative seizure, Mark filed a quiet-title action in the United\\n\\nStates District Court for the Middle District of Florida, contending that the liens\\n\\ndidn’t cover the Property because it was (in fact) not part of his father’s estate\\n\\nwhen he died.1 The government counterclaimed, seeking to foreclose on its liens.\\n\\n The government subsequently moved for summary judgment on its\\n\\ncounterclaim arguing, as relevant here, that the Property remained in Anthony’s\\n\\nestate, and was thus “subject to [the government’s] tax lien” because, as explained\\n\\nabove, “the 1998 deed was not properly witnessed.” 2 In opposing the\\n\\n\\n\\n\\n1\\n Federal question jurisdiction arises under 28 U.S.C. § 2410, which provides that district courts\\nmay hear quiet-title actions concerning property on which the United States has a lien.\\n2\\n The government also argued that the deed was void because it failed to properly identify a\\ngrantee. The district court rejected that argument, and the government does not repeat it here.\\n\\n 4\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 5 of 15\\n\\n\\ngovernment’s motion, Mark relied on Fla. Stat. § 95.231, which, in relevant part,\\n\\nstates that\\n\\n [f]ive years after the recording of an instrument required to be\\n executed in accordance with s. 689.01 . . . from which it appears that\\n the person owning the property attempted to convey [the property],\\n . . . the instrument . . . shall be held to have its purported effect to\\n convey [the property] . . . as if there had been no lack of . . . witness or\\n witnesses . . . in the absence of fraud, adverse possession, or pending\\n litigation.\\n\\nFla. Stat. § 95.231(1). By dint of that provision, Mark said, “the deed would have\\n\\nhad any defects cured . . . by operation of law” in December 2003, five years after\\n\\nthe deed’s initial recording.\\n\\n The district court granted the government’s summary-judgment motion,\\n\\nholding that despite § 95.231(1) the Property remained in the estate and that the\\n\\nIRS could therefore foreclose on its liens. First, the court concluded that\\n\\n§ 95.231(1) did not create good title in the trust because the deed’s missing second\\n\\nwitness was not among the technical defects that the statute operates to cure.\\n\\nSecond, and in any event, the court held that § 95.231(1) is essentially a statute of\\n\\nlimitations, which, under Summerlin, does not bind the United States.\\n\\nAccordingly, the district court ordered foreclosure and sale of the Property and\\n\\nrequired Mark to vacate within 30 days.\\n\\n\\n\\n\\n 5\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 6 of 15\\n\\n\\n This appeal followed.3 Although we initially denied Mark’s motion to stay\\n\\nthe order of sale pending our review, we later granted his renewed stay motion and\\n\\ndirected the parties to submit supplemental briefing on the question whether Fla.\\n\\nStat. § 95.231 “is an ordinary statute of limitations that should be subject to the\\n\\nrule set forth in United States v. Summerlin, 310 U.S. 414 (1940).”\\n\\n II\\n\\n Before diving too deeply into Summerlin, we need to establish a state-law\\n\\nbaseline: As a matter of Florida property law, who owned what, and when? To\\n\\nanswer that question, we look first to the text of § 95.231. Again, in relevant part,\\n\\nthat statute provides that, absent exceptions that don’t apply here, “[f]ive years\\n\\nafter the recording of an instrument required to be executed in accordance with s.\\n\\n689.01 . . . from which it appears that the person owning the property attempted to\\n\\nconvey [the property], . . . the instrument . . . shall be held to have its purported\\n\\neffect to convey [the property] . . . as if there had been no lack of . . . witness or\\n\\nwitnesses.” Fla. Stat. § 95.231(1). The statute goes on, in a separate section, to\\n\\nstate that “no person shall assert any claim to the property against the claimants\\n\\nunder the deed or will or their successors in title” after 20 years. Id. § 95.231(2).\\n\\n\\n\\n\\n3\\n Because this appeal comes to us on summary judgment, we review the district court’s decision\\nde novo. United States v. Spoor Tr. Of Louise Paxton Gallagher Revocable Tr., 838 F.3d 1197,\\n1201 (11th Cir. 2016).\\n\\n 6\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 7 of 15\\n\\n\\n Section 95.231’s second clause—which cuts off claims after 20 years—\\n\\nplainly falls within Summerlin’s ambit, as it is “clearly a limitations statute.” Earp\\n\\n& Shriver, Inc. v. Earp, 466 So. 2d 1225, 1227 (Fla. 2d Dist. Ct. App. 1985). But\\n\\nthis case isn’t about the second clause—we are, after all, just now passing the 20-\\n\\nyear mark following the 1998 deed’s initial recording. Rather, this case turns on\\n\\nthe statute’s first clause, which, when read in conjunction with the second, makes\\n\\nclear that § 95.231 “is not a traditional statute of limitation but is a curative act\\n\\nwith a limitation provision.” Holland v. Hattaway, 438 So. 2d 456, 461 (Fla. 5th\\n\\nDist. Ct. App. 1983). The question we must answer is whether Summerlin\\n\\nnonetheless applies.\\n\\n A\\n\\n First, a threshold issue: Setting aside the United States’ involvement—and\\n\\nfor the moment, Summerlin—is the witness-related defect here the kind of\\n\\ntechnicality that § 95.231(1) operates to rectify? The district court held that it\\n\\nisn’t. The court reasoned that the statute “cannot be used to create title where none\\n\\nexisted” and that the absence of the prescribed number of witnesses rendered the\\n\\ndeed statutorily incurable.\\n\\n That is incorrect, as both parties agree. In its brief to us, the government\\n\\nconcedes that “the absence of a required witness signature” did not “invalidate[]\\n\\nthe 1998 deed beyond the reach of [the] statute.” Section 95.231(1) expressly\\n\\n\\n 7\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 8 of 15\\n\\n\\nstates that after the requisite five-year period a recorded deed “shall be held to have\\n\\nits purported effect” despite the “lack of . . . witness or witnesses.” Thus, at least\\n\\nin the ordinary case, a missing witness is precisely the kind of defect that the\\n\\nstatute was designed to cure.\\n\\n B\\n\\n The parties’ agreement ends there. They diverge over § 95.231(1)’s\\n\\noperation—in particular when, and how, the statute cures defective deeds. The\\n\\ndispute here turns on § 95.231(1)’s statement that an otherwise-defective deed\\n\\n“shall be held to have its purported effect” five years after it is recorded—and, in\\n\\nparticular, how to understand the phrase “shall be held.” Fla. Stat. § 95.231(1).\\n\\nMark contends that the statute’s curative properties are automatic and self-\\n\\nexecuting—and, therefore, that the once-defective 1998 deed was rendered “valid\\n\\nby operation of state law in 2003,” five years after the deed was originally\\n\\nrecorded. The government, in contrast, asserts that under § 95.231(1)’s language a\\n\\nvalid cure requires some form of formal adjudication—either judicial or\\n\\nadministrative—before marketable title transfers. As the government put the\\n\\nmatter at oral argument, the term “‘held’ requires a holding.” Oral Argument at\\n\\n13:23.\\n\\n Both readings are plausible. It’s true, as the government asserts, that the\\n\\n“shall be held” language could be understood to supply a rule of decision for an\\n\\n\\n 8\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 9 of 15\\n\\n\\nadjudicative proceeding, such that the phrase indeed “requires a holding.”\\n\\nAccording to one dictionary definition, for instance, “hold” means “to decide in a\\n\\njudicial ruling,” as in “the court held that the man was sane.” Webster’s Third New\\n\\nInternational Dictionary 1078 (2002). But the word “held” is not only, or even\\n\\nprincipally, court jargon. “[S]hall be held” could just as sensibly be construed to\\n\\nmean something like “shall be considered”—to take just one fairly prominent\\n\\nexample, “We hold these truths to be self-evident . . . .” And indeed, the same\\n\\ndictionary that supplies a court-related definition also—and in fact beforehand—\\n\\ndefines “hold” to mean “consider, regard, think, judge”—as in “held by many to be\\n\\nthe greatest contemporary tennis player.” Id. See also, e.g., Oxford English\\n\\nDictionary Online, http://www.oed.com (Dec. 28, 2018) (in relevant part, defining\\n\\n“hold” to mean, first, “[t]o accept and entertain as true [or] to believe” or “[t]o\\n\\nthink, consider, esteem, regard as,” and, alternatively, to mean “[o]f a judge or\\n\\ncourt: [t]o state as an authoritative opinion [or] to law down as a point of law [or]\\n\\ndecide”).\\n\\n Happily, it’s not up to us to pick and choose between these competing\\n\\nconstructions of § 95.231(1). We are bound by the Florida courts’ interpretation of\\n\\nFlorida law, see, e.g., Bradshaw v. Richey, 546 U.S. 74, 76 (2005), and although\\n\\nthe Florida Supreme Court hasn’t squarely addressed the specific question before\\n\\nus, the clear weight of Florida authority favors the held-as-“considered” reading.\\n\\n\\n 9\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 10 of 15\\n\\n\\nEarp & Shriver v. Earp, for instance, involved an appeal from a judgment\\n\\n“declaring void a deed for”—as here—“lack of subscribing witnesses.” 466 So. 2d\\n\\nat 1226. The Second DCA reversed, holding—without qualification or intimation\\n\\nthat anything further was required—that “[a]fter the requisite passage of time, the\\n\\nstatute cured the deficiency in subscribing witnesses.” Id. at 1227. Glanville v.\\n\\nGlanville, 856 So. 2d 1045 (Fla. 5th Dist. Ct. App. 2003), is to the same effect.\\n\\nThere, when a grantor sought to invalidate a deed on the ground that it was not\\n\\nproperly witnessed and acknowledged, the grantee raised § 95.231(1) as an\\n\\naffirmative defense. Citing Earp with approval, the Fifth DCA held that “the\\n\\nstatute bar[red] the claim” because the suit “was filed more than five years after the\\n\\ndeed was recorded.” Id. at 1047. Taken together, these cases show that, after five\\n\\nyears, the statute not only shields a once-defective deed from judicial attack, but\\n\\nalso—of its own force—affirmatively mends it back to health.\\n\\n We hold, then, that Mark didn’t have to go to court to enforce § 95.231(1)’s\\n\\ncurative provision. Instead, the deed was “held”—as in considered—“to have its\\n\\npurported effect” by operation of law in December 2003, five years after it was\\n\\ninitially recorded.\\n\\n III\\n\\n So where does that leave us vis-à-vis Summerlin? Under Summerlin,\\n\\n“[w]hen the United States becomes entitled to a claim, acting in its governmental\\n\\n\\n 10\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 11 of 15\\n\\n\\ncapacity and asserts its claim in that right, it cannot be deemed to have abdicated\\n\\nits governmental authority so as to become subject to a state statute putting a time\\n\\nlimit upon enforcement.” Summerlin, 310 U.S. at 417. Put slightly differently,\\n\\nwhen a statute of limitations “invalidate[s a] claim of the United States, so that it\\n\\ncannot be enforced at all,” the time bar—as against the government, anyway—is\\n\\nunenforceable. Id. In the sections that follow, we first review the doctrine and\\n\\nunderlying policy of the Summerlin rule, and then determine whether the rule\\n\\napplies in this case.\\n\\n A\\n\\n As noted at the outset, the so-called Summerlin rule dates to well before the\\n\\nSummerlin decision itself. Riding circuit in an early case, Justice Joseph Story\\n\\ninvoked the rule and, for support, cited English cases and commentaries stretching\\n\\nback to the 1200s. See United States v. Hoar, 26 F. Cas. 329, 330 (C.C.D. Mass.\\n\\n1821). The “centuries”-old nullum tempus principle, he observed, sprang from the\\n\\nconcern that the “king is always busied for the public good, and, therefore, has not\\n\\nleisure to assert his right within the times limited to subjects.” Id. So too in the\\n\\nyoung Republic, Story continued, there was a “great public policy of preserving\\n\\nthe public rights, revenues, and property from injury and loss, by the negligence of\\n\\npublic officers.” Id. The Supreme Court later agreed, acknowledging that nullum\\n\\ntempus survived the Revolution and the founding and inured to the United States as\\n\\n\\n 11\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 12 of 15\\n\\n\\nan “incident[] of . . . sovereignty.” United States v. Thompson, 98 U.S. 486, 489\\n\\n(1878).\\n\\n Over time, courts have made clear that nullum tempus provides a hedge\\n\\nagainst, well, bad government. In particular, the rule is founded on the concern\\n\\nthat the public suffers when the government sleeps on its rights. See United States\\n\\nv. Delgado, 321 F.3d 1338, 1349 (11th Cir. 2003) (“This principle protects public\\n\\nrights vested in the government for the benefit of all from the inadvertence of the\\n\\nagents upon which the government must necessarily rely.”) (quotations omitted).\\n\\nThus, whereas individual citizens can be penalized for inattentiveness in enforcing\\n\\ntheir rights, the United States cannot be. See, e.g., Guaranty Trust Co. of N.Y. v.\\n\\nUnited States, 304 U.S. 126, 132 (1938) (“Regardless of the form of government\\n\\nand independently of the royal prerogative once thought sufficient to justify it, the\\n\\nrule is supportable now because its benefit and advantage extend to every citizen,\\n\\nincluding the defendant, whose plea of laches or limitation it precludes.”).\\n\\n Importantly here, the Summerlin principle has its limits. In Guaranty Trust,\\n\\nfor example, the Supreme Court held that the nullum tempus rule is inapplicable\\n\\nwhere the United States has not “acquired a right free of a pre-existing infirmity.”\\n\\n304 U.S. at 142 (citing United States v. Buford, 28 U.S. 12, 29 (1830)). There, for\\n\\ninstance, because the relevant limitations period had expired before the United\\n\\nStates acquired the claim it sought to enforce, nullum tempus did not apply. See\\n\\n\\n 12\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 13 of 15\\n\\n\\nid.; see also United States v. California, 507 U.S. 746, 757–58 (1993) (applying\\n\\nsimilar logic in a subrogation claim and holding that “Summerlin is clearly\\n\\ndistinguishable”). As the Ninth Circuit nicely summarized matters in Bresson v.\\n\\nCommissioner, “[t]aken together, Summerlin and Guaranty Trust suggest two\\n\\ncountervailing principles.” 213 F.3d 1173, 1176 (9th Cir. 2000). “On the one\\n\\nhand,” the court explained, “if the United States comes into possession of a valid\\n\\nclaim, that claim cannot be ‘cut off’ later by a state statute of limitations.” Id. But\\n\\n“[o]n the other hand, if a claim already has become infirm (for example, when a\\n\\nlimitations period expires) by the time the United States acquires the purported\\n\\nright, the rule of Summerlin will not operate to revive the claim.” Id. In short, the\\n\\nSummerlin principle can’t create rights that do not otherwise exist.\\n\\n B\\n\\n What, then, of this case? Does Summerlin forestall the operation of\\n\\n§ 95.231(1) or not? Because, following Florida’s lead, we have held that the\\n\\nstatute is self-executing, the question admits of an easy answer. We hold that\\n\\nSummerlin is inapplicable here because, by operation of § 95.231(1), the Property\\n\\ndropped out of the estate in December 2003, five years after the deed was\\n\\noriginally recorded—and, importantly, roughly two years before Anthony died,\\n\\nand thus before any claim asserted by the United States could have accrued.\\n\\n\\n\\n\\n 13\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 14 of 15\\n\\n\\n As already explained, the Summerlin principle applies only “[w]hen the\\n\\nUnited States becomes entitled to a claim.” Summerlin, 310 U.S. at 417. If a valid\\n\\nclaim never materializes—or, as in Guaranty Trust, comes with a “pre-existing\\n\\ninfirmity”—then Summerlin doesn’t come into play. 304 U.S. at 142. Just so here.\\n\\nThe United States’ claim to Anthony’s estate accrued, at the earliest, when he died\\n\\nin December 2005. But by operation of § 95.231(1), Mark had acquired good title\\n\\nto the Property two years earlier, in December 2003—five years after the defective\\n\\ndeed was recorded. Accordingly, we do not have here “a situation in which a valid\\n\\ncause of action had accrued to the United States only to perish later through the\\n\\npassage of time.” Bresson, 213 F.3d at 1178. Rather, § 95.231(1) prevented the\\n\\nProperty from becoming part of the United States’ “claim” in the first place.\\n\\n Not only is this case not within the letter of the Summerlin rule, it is not\\n\\nwithin its spirit, either. This isn’t a situation in which the United States missed out\\n\\non a claim because some government employee was asleep at the switch and\\n\\nnegligently let a clock run out. Because Mark’s father didn’t die until 2005, no\\n\\namount of diligence on the part of the IRS could have made it possible for the\\n\\ngovernment to acquire a valid estate-tax claim before the deed was statutorily\\n\\ncured in 2003. As in Guaranty Trust, “the circumstances of the present case admit\\n\\nof no appeal” to Summerlin’s policy underpinnings, because “[t]here has been no\\n\\n\\n\\n\\n 14\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 15 of 15\\n\\n\\nneglect or delay by the United States or its agents, and it has lost no rights by any\\n\\nlapse of time.” 304 U.S. at 141.\\n\\n IV\\n\\n In sum, we hold that Fla. Stat. § 95.231(1) cured the deed by operation of\\n\\nlaw in December 2003, that the Property was at that point validly transferred to the\\n\\ntrust, and that Summerlin is inapplicable here because by the time the United States\\n\\nasserted its tax lien the Property no longer remained in the estate. We therefore\\n\\nreverse the district court’s entry of summary judgment on the United States’\\n\\nforeclosure claim as to the Property and remand for further proceedings consistent\\n\\nwith this opinion.\\n\\n REVERSED AND REMANDED.\\n\\n\\n\\n\\n 15\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4358260/\", \"author_raw\": \"NEWSOM, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"MARCUS"},"judge2":{"kind":"string","value":"NEWSOM"},"judge3":{"kind":"string","value":"ANDERSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4581007/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Mark A. SACCULLO, as Successor Trustee of the Anthony L. Saccullo Irrevocable Trust for the Benefit of Mark A. Saccullo, Plaintiff-Counter Defendant-Appellant, Dorothy A. Saccullo, Counter Defendant-Appellant, Tax Collector of Charlotte County, Florida, Counter Defendant, v. UNITED STATES OF AMERICA, Defendant-Counter Claimant-Appellee.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-01-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-14546 Date Filed: 01/11/2019 Page: 1 of 15\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-14546\n ________________________\n\n D.C. Docket No. 8:16-cv-00410-CEH-TBM\n\n\nMARK A. SACCULLO,\nas Successor Trustee of the Anthony L.\nSaccullo Irrevocable Trust for the benefit\nof Mark A. Saccullo,\n\n Plaintiff-Counter Defendant-Appellant,\n\nDOROTHY A. SACCULLO,\n\n Counter Defendant-Appellant,\n\nTAX COLLECTOR OF CHARLOTTE\nCOUNTY, FLORIDA,\n\n Counter Defendant,\n\n versus\n\nUNITED STATES OF AMERICA,\n\n Defendant-Counter Claimant-Appellee.\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Florida\n ________________________\n (January 11, 2019)\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 2 of 15\n\n\nBefore MARCUS, NEWSOM, and ANDERSON, Circuit Judges.\n\nNEWSOM, Circuit Judge:\n\n One relic of the English legal tradition holds that, as a general matter, the\n\nsovereign (here, the United States) is not bound by statutes of limitation or subject\n\nto laches. The question before us is how this vestigial rule—nullum tempus\n\noccurrit regi, or, as the parties here call it, the “Summerlin” principle, after United\n\nStates v. Summerlin, 310 U.S. 414, 416 (1940)—interacts with a Florida law\n\ndesigned to correct technical flaws in property-conveyance deeds.\n\n At issue in this case is whether Fla. Stat. § 95.231, which operates to cure\n\ncertain defective deeds after the passage of five years, applies to a parcel on which\n\nthe United States has asserted a federal estate-tax lien. Here’s the (very) short\n\nstory: In 1998, the appellant’s aging father executed a deed conveying property to\n\na trust created for the appellant’s benefit—but unfortunately, failed to procure a\n\nsecond witness, as Florida law requires. Following the appellant’s father’s death in\n\n2005, the United States assessed an estate tax on the property—which it said\n\nremained in the estate despite the attempted conveyance—and, when the tax\n\nremained unpaid, imposed a series of liens. The question here is whether\n\nSummerlin forestalls enforcement of § 95.231’s five-year-cure provision to defeat\n\nthe United States’ estate-tax claim. We hold that it does not. Section 95.231 cured\n\nthe deed in question, thereby effectuating the intended conveyance and transferring\n\n\n 2\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 3 of 15\n\n\nthe property out of the father’s estate, well before the United States’ claim could\n\nhave vested. The Florida statute, therefore, didn’t cut off a preexisting claim in a\n\nway that might offend Summerlin; rather, it simply—and validly—prevented that\n\nclaim from coming into being in the first place.\n\n I\n\n A\n\n Mark Saccullo has lived on the property at issue here, the site of his\n\nchildhood home, since 1991. In 1998, Mark’s father Anthony, who owned what\n\nwe’ll call “the Property” in fee simple, executed a deed that purported to convey it\n\nto the “Anthony L. Saccullo Irrevocable Trust for the benefit of Mark A.\n\nSaccullo.” For the most part, the deed conformed to the necessary formalities, and\n\nit was properly notarized and recorded in December 1998. There was just one\n\nglitch: the deed bore the signature of only one witness, not the two required by Fla.\n\nStat. § 689.01. That failure effectively negated the conveyance—at least for the\n\ntime being, but more on that later—and despite the deed, Anthony retained title to\n\nthe Property.\n\n When Anthony died in December 2005, Mark became the trustee of his\n\nfather’s irrevocable trust. Mark filed an estate-tax return and—mistakenly it now\n\nseems—included the Property among the estate’s assets. In 2007, the IRS assessed\n\nan estate tax of almost $1.4 million, apparently under the impression that the estate\n\n\n 3\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 4 of 15\n\n\nstill owned the Property. Shortly thereafter, Mark, acting in his capacity as trustee,\n\nconveyed the Property via quitclaim deed to himself and his wife.\n\n Because the estate-tax liability remained delinquent, the government filed\n\ntwo tax-lien notices with Charlotte County, Florida—one against the estate in\n\n2012, and another against the Property in 2015. The IRS later administratively\n\nseized the Property and unsuccessfully sought to sell it, as the estate-tax liability\n\nincreased to $1.6 million.\n\n B\n\n After the administrative seizure, Mark filed a quiet-title action in the United\n\nStates District Court for the Middle District of Florida, contending that the liens\n\ndidn’t cover the Property because it was (in fact) not part of his father’s estate\n\nwhen he died.1 The government counterclaimed, seeking to foreclose on its liens.\n\n The government subsequently moved for summary judgment on its\n\ncounterclaim arguing, as relevant here, that the Property remained in Anthony’s\n\nestate, and was thus “subject to [the government’s] tax lien” because, as explained\n\nabove, “the 1998 deed was not properly witnessed.” 2 In opposing the\n\n\n\n\n1\n Federal question jurisdiction arises under 28 U.S.C. § 2410, which provides that district courts\nmay hear quiet-title actions concerning property on which the United States has a lien.\n2\n The government also argued that the deed was void because it failed to properly identify a\ngrantee. The district court rejected that argument, and the government does not repeat it here.\n\n 4\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 5 of 15\n\n\ngovernment’s motion, Mark relied on Fla. Stat. § 95.231, which, in relevant part,\n\nstates that\n\n [f]ive years after the recording of an instrument required to be\n executed in accordance with s. 689.01 . . . from which it appears that\n the person owning the property attempted to convey [the property],\n . . . the instrument . . . shall be held to have its purported effect to\n convey [the property] . . . as if there had been no lack of . . . witness or\n witnesses . . . in the absence of fraud, adverse possession, or pending\n litigation.\n\nFla. Stat. § 95.231(1). By dint of that provision, Mark said, “the deed would have\n\nhad any defects cured . . . by operation of law” in December 2003, five years after\n\nthe deed’s initial recording.\n\n The district court granted the government’s summary-judgment motion,\n\nholding that despite § 95.231(1) the Property remained in the estate and that the\n\nIRS could therefore foreclose on its liens. First, the court concluded that\n\n§ 95.231(1) did not create good title in the trust because the deed’s missing second\n\nwitness was not among the technical defects that the statute operates to cure.\n\nSecond, and in any event, the court held that § 95.231(1) is essentially a statute of\n\nlimitations, which, under Summerlin, does not bind the United States.\n\nAccordingly, the district court ordered foreclosure and sale of the Property and\n\nrequired Mark to vacate within 30 days.\n\n\n\n\n 5\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 6 of 15\n\n\n This appeal followed.3 Although we initially denied Mark’s motion to stay\n\nthe order of sale pending our review, we later granted his renewed stay motion and\n\ndirected the parties to submit supplemental briefing on the question whether Fla.\n\nStat. § 95.231 “is an ordinary statute of limitations that should be subject to the\n\nrule set forth in United States v. Summerlin, 310 U.S. 414 (1940).”\n\n II\n\n Before diving too deeply into Summerlin, we need to establish a state-law\n\nbaseline: As a matter of Florida property law, who owned what, and when? To\n\nanswer that question, we look first to the text of § 95.231. Again, in relevant part,\n\nthat statute provides that, absent exceptions that don’t apply here, “[f]ive years\n\nafter the recording of an instrument required to be executed in accordance with s.\n\n689.01 . . . from which it appears that the person owning the property attempted to\n\nconvey [the property], . . . the instrument . . . shall be held to have its purported\n\neffect to convey [the property] . . . as if there had been no lack of . . . witness or\n\nwitnesses.” Fla. Stat. § 95.231(1). The statute goes on, in a separate section, to\n\nstate that “no person shall assert any claim to the property against the claimants\n\nunder the deed or will or their successors in title” after 20 years. Id. § 95.231(2).\n\n\n\n\n3\n Because this appeal comes to us on summary judgment, we review the district court’s decision\nde novo. United States v. Spoor Tr. Of Louise Paxton Gallagher Revocable Tr., 838 F.3d 1197,\n1201 (11th Cir. 2016).\n\n 6\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 7 of 15\n\n\n Section 95.231’s second clause—which cuts off claims after 20 years—\n\nplainly falls within Summerlin’s ambit, as it is “clearly a limitations statute.” Earp\n\n& Shriver, Inc. v. Earp, 466 So. 2d 1225, 1227 (Fla. 2d Dist. Ct. App. 1985). But\n\nthis case isn’t about the second clause—we are, after all, just now passing the 20-\n\nyear mark following the 1998 deed’s initial recording. Rather, this case turns on\n\nthe statute’s first clause, which, when read in conjunction with the second, makes\n\nclear that § 95.231 “is not a traditional statute of limitation but is a curative act\n\nwith a limitation provision.” Holland v. Hattaway, 438 So. 2d 456, 461 (Fla. 5th\n\nDist. Ct. App. 1983). The question we must answer is whether Summerlin\n\nnonetheless applies.\n\n A\n\n First, a threshold issue: Setting aside the United States’ involvement—and\n\nfor the moment, Summerlin—is the witness-related defect here the kind of\n\ntechnicality that § 95.231(1) operates to rectify? The district court held that it\n\nisn’t. The court reasoned that the statute “cannot be used to create title where none\n\nexisted” and that the absence of the prescribed number of witnesses rendered the\n\ndeed statutorily incurable.\n\n That is incorrect, as both parties agree. In its brief to us, the government\n\nconcedes that “the absence of a required witness signature” did not “invalidate[]\n\nthe 1998 deed beyond the reach of [the] statute.” Section 95.231(1) expressly\n\n\n 7\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 8 of 15\n\n\nstates that after the requisite five-year period a recorded deed “shall be held to have\n\nits purported effect” despite the “lack of . . . witness or witnesses.” Thus, at least\n\nin the ordinary case, a missing witness is precisely the kind of defect that the\n\nstatute was designed to cure.\n\n B\n\n The parties’ agreement ends there. They diverge over § 95.231(1)’s\n\noperation—in particular when, and how, the statute cures defective deeds. The\n\ndispute here turns on § 95.231(1)’s statement that an otherwise-defective deed\n\n“shall be held to have its purported effect” five years after it is recorded—and, in\n\nparticular, how to understand the phrase “shall be held.” Fla. Stat. § 95.231(1).\n\nMark contends that the statute’s curative properties are automatic and self-\n\nexecuting—and, therefore, that the once-defective 1998 deed was rendered “valid\n\nby operation of state law in 2003,” five years after the deed was originally\n\nrecorded. The government, in contrast, asserts that under § 95.231(1)’s language a\n\nvalid cure requires some form of formal adjudication—either judicial or\n\nadministrative—before marketable title transfers. As the government put the\n\nmatter at oral argument, the term “‘held’ requires a holding.” Oral Argument at\n\n13:23.\n\n Both readings are plausible. It’s true, as the government asserts, that the\n\n“shall be held” language could be understood to supply a rule of decision for an\n\n\n 8\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 9 of 15\n\n\nadjudicative proceeding, such that the phrase indeed “requires a holding.”\n\nAccording to one dictionary definition, for instance, “hold” means “to decide in a\n\njudicial ruling,” as in “the court held that the man was sane.” Webster’s Third New\n\nInternational Dictionary 1078 (2002). But the word “held” is not only, or even\n\nprincipally, court jargon. “[S]hall be held” could just as sensibly be construed to\n\nmean something like “shall be considered”—to take just one fairly prominent\n\nexample, “We hold these truths to be self-evident . . . .” And indeed, the same\n\ndictionary that supplies a court-related definition also—and in fact beforehand—\n\ndefines “hold” to mean “consider, regard, think, judge”—as in “held by many to be\n\nthe greatest contemporary tennis player.” Id. See also, e.g., Oxford English\n\nDictionary Online, http://www.oed.com (Dec. 28, 2018) (in relevant part, defining\n\n“hold” to mean, first, “[t]o accept and entertain as true [or] to believe” or “[t]o\n\nthink, consider, esteem, regard as,” and, alternatively, to mean “[o]f a judge or\n\ncourt: [t]o state as an authoritative opinion [or] to law down as a point of law [or]\n\ndecide”).\n\n Happily, it’s not up to us to pick and choose between these competing\n\nconstructions of § 95.231(1). We are bound by the Florida courts’ interpretation of\n\nFlorida law, see, e.g., Bradshaw v. Richey, 546 U.S. 74, 76 (2005), and although\n\nthe Florida Supreme Court hasn’t squarely addressed the specific question before\n\nus, the clear weight of Florida authority favors the held-as-“considered” reading.\n\n\n 9\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 10 of 15\n\n\nEarp & Shriver v. Earp, for instance, involved an appeal from a judgment\n\n“declaring void a deed for”—as here—“lack of subscribing witnesses.” 466 So. 2d\n\nat 1226. The Second DCA reversed, holding—without qualification or intimation\n\nthat anything further was required—that “[a]fter the requisite passage of time, the\n\nstatute cured the deficiency in subscribing witnesses.” Id. at 1227. Glanville v.\n\nGlanville, 856 So. 2d 1045 (Fla. 5th Dist. Ct. App. 2003), is to the same effect.\n\nThere, when a grantor sought to invalidate a deed on the ground that it was not\n\nproperly witnessed and acknowledged, the grantee raised § 95.231(1) as an\n\naffirmative defense. Citing Earp with approval, the Fifth DCA held that “the\n\nstatute bar[red] the claim” because the suit “was filed more than five years after the\n\ndeed was recorded.” Id. at 1047. Taken together, these cases show that, after five\n\nyears, the statute not only shields a once-defective deed from judicial attack, but\n\nalso—of its own force—affirmatively mends it back to health.\n\n We hold, then, that Mark didn’t have to go to court to enforce § 95.231(1)’s\n\ncurative provision. Instead, the deed was “held”—as in considered—“to have its\n\npurported effect” by operation of law in December 2003, five years after it was\n\ninitially recorded.\n\n III\n\n So where does that leave us vis-à-vis Summerlin? Under Summerlin,\n\n“[w]hen the United States becomes entitled to a claim, acting in its governmental\n\n\n 10\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 11 of 15\n\n\ncapacity and asserts its claim in that right, it cannot be deemed to have abdicated\n\nits governmental authority so as to become subject to a state statute putting a time\n\nlimit upon enforcement.” Summerlin, 310 U.S. at 417. Put slightly differently,\n\nwhen a statute of limitations “invalidate[s a] claim of the United States, so that it\n\ncannot be enforced at all,” the time bar—as against the government, anyway—is\n\nunenforceable. Id. In the sections that follow, we first review the doctrine and\n\nunderlying policy of the Summerlin rule, and then determine whether the rule\n\napplies in this case.\n\n A\n\n As noted at the outset, the so-called Summerlin rule dates to well before the\n\nSummerlin decision itself. Riding circuit in an early case, Justice Joseph Story\n\ninvoked the rule and, for support, cited English cases and commentaries stretching\n\nback to the 1200s. See United States v. Hoar, 26 F. Cas. 329, 330 (C.C.D. Mass.\n\n1821). The “centuries”-old nullum tempus principle, he observed, sprang from the\n\nconcern that the “king is always busied for the public good, and, therefore, has not\n\nleisure to assert his right within the times limited to subjects.” Id. So too in the\n\nyoung Republic, Story continued, there was a “great public policy of preserving\n\nthe public rights, revenues, and property from injury and loss, by the negligence of\n\npublic officers.” Id. The Supreme Court later agreed, acknowledging that nullum\n\ntempus survived the Revolution and the founding and inured to the United States as\n\n\n 11\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 12 of 15\n\n\nan “incident[] of . . . sovereignty.” United States v. Thompson, 98 U.S. 486, 489\n\n(1878).\n\n Over time, courts have made clear that nullum tempus provides a hedge\n\nagainst, well, bad government. In particular, the rule is founded on the concern\n\nthat the public suffers when the government sleeps on its rights. See United States\n\nv. Delgado, 321 F.3d 1338, 1349 (11th Cir. 2003) (“This principle protects public\n\nrights vested in the government for the benefit of all from the inadvertence of the\n\nagents upon which the government must necessarily rely.”) (quotations omitted).\n\nThus, whereas individual citizens can be penalized for inattentiveness in enforcing\n\ntheir rights, the United States cannot be. See, e.g., Guaranty Trust Co. of N.Y. v.\n\nUnited States, 304 U.S. 126, 132 (1938) (“Regardless of the form of government\n\nand independently of the royal prerogative once thought sufficient to justify it, the\n\nrule is supportable now because its benefit and advantage extend to every citizen,\n\nincluding the defendant, whose plea of laches or limitation it precludes.”).\n\n Importantly here, the Summerlin principle has its limits. In Guaranty Trust,\n\nfor example, the Supreme Court held that the nullum tempus rule is inapplicable\n\nwhere the United States has not “acquired a right free of a pre-existing infirmity.”\n\n304 U.S. at 142 (citing United States v. Buford, 28 U.S. 12, 29 (1830)). There, for\n\ninstance, because the relevant limitations period had expired before the United\n\nStates acquired the claim it sought to enforce, nullum tempus did not apply. See\n\n\n 12\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 13 of 15\n\n\nid.; see also United States v. California, 507 U.S. 746, 757–58 (1993) (applying\n\nsimilar logic in a subrogation claim and holding that “Summerlin is clearly\n\ndistinguishable”). As the Ninth Circuit nicely summarized matters in Bresson v.\n\nCommissioner, “[t]aken together, Summerlin and Guaranty Trust suggest two\n\ncountervailing principles.” 213 F.3d 1173, 1176 (9th Cir. 2000). “On the one\n\nhand,” the court explained, “if the United States comes into possession of a valid\n\nclaim, that claim cannot be ‘cut off’ later by a state statute of limitations.” Id. But\n\n“[o]n the other hand, if a claim already has become infirm (for example, when a\n\nlimitations period expires) by the time the United States acquires the purported\n\nright, the rule of Summerlin will not operate to revive the claim.” Id. In short, the\n\nSummerlin principle can’t create rights that do not otherwise exist.\n\n B\n\n What, then, of this case? Does Summerlin forestall the operation of\n\n§ 95.231(1) or not? Because, following Florida’s lead, we have held that the\n\nstatute is self-executing, the question admits of an easy answer. We hold that\n\nSummerlin is inapplicable here because, by operation of § 95.231(1), the Property\n\ndropped out of the estate in December 2003, five years after the deed was\n\noriginally recorded—and, importantly, roughly two years before Anthony died,\n\nand thus before any claim asserted by the United States could have accrued.\n\n\n\n\n 13\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 14 of 15\n\n\n As already explained, the Summerlin principle applies only “[w]hen the\n\nUnited States becomes entitled to a claim.” Summerlin, 310 U.S. at 417. If a valid\n\nclaim never materializes—or, as in Guaranty Trust, comes with a “pre-existing\n\ninfirmity”—then Summerlin doesn’t come into play. 304 U.S. at 142. Just so here.\n\nThe United States’ claim to Anthony’s estate accrued, at the earliest, when he died\n\nin December 2005. But by operation of § 95.231(1), Mark had acquired good title\n\nto the Property two years earlier, in December 2003—five years after the defective\n\ndeed was recorded. Accordingly, we do not have here “a situation in which a valid\n\ncause of action had accrued to the United States only to perish later through the\n\npassage of time.” Bresson, 213 F.3d at 1178. Rather, § 95.231(1) prevented the\n\nProperty from becoming part of the United States’ “claim” in the first place.\n\n Not only is this case not within the letter of the Summerlin rule, it is not\n\nwithin its spirit, either. This isn’t a situation in which the United States missed out\n\non a claim because some government employee was asleep at the switch and\n\nnegligently let a clock run out. Because Mark’s father didn’t die until 2005, no\n\namount of diligence on the part of the IRS could have made it possible for the\n\ngovernment to acquire a valid estate-tax claim before the deed was statutorily\n\ncured in 2003. As in Guaranty Trust, “the circumstances of the present case admit\n\nof no appeal” to Summerlin’s policy underpinnings, because “[t]here has been no\n\n\n\n\n 14\n\f Case: 17-14546 Date Filed: 01/11/2019 Page: 15 of 15\n\n\nneglect or delay by the United States or its agents, and it has lost no rights by any\n\nlapse of time.” 304 U.S. at 141.\n\n IV\n\n In sum, we hold that Fla. Stat. § 95.231(1) cured the deed by operation of\n\nlaw in December 2003, that the Property was at that point validly transferred to the\n\ntrust, and that Summerlin is inapplicable here because by the time the United States\n\nasserted its tax lien the Property no longer remained in the estate. We therefore\n\nreverse the district court’s entry of summary judgment on the United States’\n\nforeclosure claim as to the Property and remand for further proceedings consistent\n\nwith this opinion.\n\n REVERSED AND REMANDED.\n\n\n\n\n 15\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Mark A. SACCULLO, as Successor Trustee of the Anthony L. Saccullo Irrevocable Trust for the Benefit of Mark A. Saccullo, Plaintiff-Counter Defendant-Appellant, Dorothy A. Saccullo, Counter Defendant-Appellant, Tax Collector of Charlotte County, Florida, Counter Defendant, v. UNITED STATES OF AMERICA, Defendant-Counter Claimant-Appellee.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-01-11\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-14546 Date Filed: 01/11/2019 Page: 1 of 15\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-14546\\n ________________________\\n\\n D.C. Docket No. 8:16-cv-00410-CEH-TBM\\n\\n\\nMARK A. SACCULLO,\\nas Successor Trustee of the Anthony L.\\nSaccullo Irrevocable Trust for the benefit\\nof Mark A. Saccullo,\\n\\n Plaintiff-Counter Defendant-Appellant,\\n\\nDOROTHY A. SACCULLO,\\n\\n Counter Defendant-Appellant,\\n\\nTAX COLLECTOR OF CHARLOTTE\\nCOUNTY, FLORIDA,\\n\\n Counter Defendant,\\n\\n versus\\n\\nUNITED STATES OF AMERICA,\\n\\n Defendant-Counter Claimant-Appellee.\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n (January 11, 2019)\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 2 of 15\\n\\n\\nBefore MARCUS, NEWSOM, and ANDERSON, Circuit Judges.\\n\\nNEWSOM, Circuit Judge:\\n\\n One relic of the English legal tradition holds that, as a general matter, the\\n\\nsovereign (here, the United States) is not bound by statutes of limitation or subject\\n\\nto laches. The question before us is how this vestigial rule—nullum tempus\\n\\noccurrit regi, or, as the parties here call it, the “Summerlin” principle, after United\\n\\nStates v. Summerlin, 310 U.S. 414, 416 (1940)—interacts with a Florida law\\n\\ndesigned to correct technical flaws in property-conveyance deeds.\\n\\n At issue in this case is whether Fla. Stat. § 95.231, which operates to cure\\n\\ncertain defective deeds after the passage of five years, applies to a parcel on which\\n\\nthe United States has asserted a federal estate-tax lien. Here’s the (very) short\\n\\nstory: In 1998, the appellant’s aging father executed a deed conveying property to\\n\\na trust created for the appellant’s benefit—but unfortunately, failed to procure a\\n\\nsecond witness, as Florida law requires. Following the appellant’s father’s death in\\n\\n2005, the United States assessed an estate tax on the property—which it said\\n\\nremained in the estate despite the attempted conveyance—and, when the tax\\n\\nremained unpaid, imposed a series of liens. The question here is whether\\n\\nSummerlin forestalls enforcement of § 95.231’s five-year-cure provision to defeat\\n\\nthe United States’ estate-tax claim. We hold that it does not. Section 95.231 cured\\n\\nthe deed in question, thereby effectuating the intended conveyance and transferring\\n\\n\\n 2\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 3 of 15\\n\\n\\nthe property out of the father’s estate, well before the United States’ claim could\\n\\nhave vested. The Florida statute, therefore, didn’t cut off a preexisting claim in a\\n\\nway that might offend Summerlin; rather, it simply—and validly—prevented that\\n\\nclaim from coming into being in the first place.\\n\\n I\\n\\n A\\n\\n Mark Saccullo has lived on the property at issue here, the site of his\\n\\nchildhood home, since 1991. In 1998, Mark’s father Anthony, who owned what\\n\\nwe’ll call “the Property” in fee simple, executed a deed that purported to convey it\\n\\nto the “Anthony L. Saccullo Irrevocable Trust for the benefit of Mark A.\\n\\nSaccullo.” For the most part, the deed conformed to the necessary formalities, and\\n\\nit was properly notarized and recorded in December 1998. There was just one\\n\\nglitch: the deed bore the signature of only one witness, not the two required by Fla.\\n\\nStat. § 689.01. That failure effectively negated the conveyance—at least for the\\n\\ntime being, but more on that later—and despite the deed, Anthony retained title to\\n\\nthe Property.\\n\\n When Anthony died in December 2005, Mark became the trustee of his\\n\\nfather’s irrevocable trust. Mark filed an estate-tax return and—mistakenly it now\\n\\nseems—included the Property among the estate’s assets. In 2007, the IRS assessed\\n\\nan estate tax of almost $1.4 million, apparently under the impression that the estate\\n\\n\\n 3\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 4 of 15\\n\\n\\nstill owned the Property. Shortly thereafter, Mark, acting in his capacity as trustee,\\n\\nconveyed the Property via quitclaim deed to himself and his wife.\\n\\n Because the estate-tax liability remained delinquent, the government filed\\n\\ntwo tax-lien notices with Charlotte County, Florida—one against the estate in\\n\\n2012, and another against the Property in 2015. The IRS later administratively\\n\\nseized the Property and unsuccessfully sought to sell it, as the estate-tax liability\\n\\nincreased to $1.6 million.\\n\\n B\\n\\n After the administrative seizure, Mark filed a quiet-title action in the United\\n\\nStates District Court for the Middle District of Florida, contending that the liens\\n\\ndidn’t cover the Property because it was (in fact) not part of his father’s estate\\n\\nwhen he died.1 The government counterclaimed, seeking to foreclose on its liens.\\n\\n The government subsequently moved for summary judgment on its\\n\\ncounterclaim arguing, as relevant here, that the Property remained in Anthony’s\\n\\nestate, and was thus “subject to [the government’s] tax lien” because, as explained\\n\\nabove, “the 1998 deed was not properly witnessed.” 2 In opposing the\\n\\n\\n\\n\\n1\\n Federal question jurisdiction arises under 28 U.S.C. § 2410, which provides that district courts\\nmay hear quiet-title actions concerning property on which the United States has a lien.\\n2\\n The government also argued that the deed was void because it failed to properly identify a\\ngrantee. The district court rejected that argument, and the government does not repeat it here.\\n\\n 4\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 5 of 15\\n\\n\\ngovernment’s motion, Mark relied on Fla. Stat. § 95.231, which, in relevant part,\\n\\nstates that\\n\\n [f]ive years after the recording of an instrument required to be\\n executed in accordance with s. 689.01 . . . from which it appears that\\n the person owning the property attempted to convey [the property],\\n . . . the instrument . . . shall be held to have its purported effect to\\n convey [the property] . . . as if there had been no lack of . . . witness or\\n witnesses . . . in the absence of fraud, adverse possession, or pending\\n litigation.\\n\\nFla. Stat. § 95.231(1). By dint of that provision, Mark said, “the deed would have\\n\\nhad any defects cured . . . by operation of law” in December 2003, five years after\\n\\nthe deed’s initial recording.\\n\\n The district court granted the government’s summary-judgment motion,\\n\\nholding that despite § 95.231(1) the Property remained in the estate and that the\\n\\nIRS could therefore foreclose on its liens. First, the court concluded that\\n\\n§ 95.231(1) did not create good title in the trust because the deed’s missing second\\n\\nwitness was not among the technical defects that the statute operates to cure.\\n\\nSecond, and in any event, the court held that § 95.231(1) is essentially a statute of\\n\\nlimitations, which, under Summerlin, does not bind the United States.\\n\\nAccordingly, the district court ordered foreclosure and sale of the Property and\\n\\nrequired Mark to vacate within 30 days.\\n\\n\\n\\n\\n 5\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 6 of 15\\n\\n\\n This appeal followed.3 Although we initially denied Mark’s motion to stay\\n\\nthe order of sale pending our review, we later granted his renewed stay motion and\\n\\ndirected the parties to submit supplemental briefing on the question whether Fla.\\n\\nStat. § 95.231 “is an ordinary statute of limitations that should be subject to the\\n\\nrule set forth in United States v. Summerlin, 310 U.S. 414 (1940).”\\n\\n II\\n\\n Before diving too deeply into Summerlin, we need to establish a state-law\\n\\nbaseline: As a matter of Florida property law, who owned what, and when? To\\n\\nanswer that question, we look first to the text of § 95.231. Again, in relevant part,\\n\\nthat statute provides that, absent exceptions that don’t apply here, “[f]ive years\\n\\nafter the recording of an instrument required to be executed in accordance with s.\\n\\n689.01 . . . from which it appears that the person owning the property attempted to\\n\\nconvey [the property], . . . the instrument . . . shall be held to have its purported\\n\\neffect to convey [the property] . . . as if there had been no lack of . . . witness or\\n\\nwitnesses.” Fla. Stat. § 95.231(1). The statute goes on, in a separate section, to\\n\\nstate that “no person shall assert any claim to the property against the claimants\\n\\nunder the deed or will or their successors in title” after 20 years. Id. § 95.231(2).\\n\\n\\n\\n\\n3\\n Because this appeal comes to us on summary judgment, we review the district court’s decision\\nde novo. United States v. Spoor Tr. Of Louise Paxton Gallagher Revocable Tr., 838 F.3d 1197,\\n1201 (11th Cir. 2016).\\n\\n 6\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 7 of 15\\n\\n\\n Section 95.231’s second clause—which cuts off claims after 20 years—\\n\\nplainly falls within Summerlin’s ambit, as it is “clearly a limitations statute.” Earp\\n\\n& Shriver, Inc. v. Earp, 466 So. 2d 1225, 1227 (Fla. 2d Dist. Ct. App. 1985). But\\n\\nthis case isn’t about the second clause—we are, after all, just now passing the 20-\\n\\nyear mark following the 1998 deed’s initial recording. Rather, this case turns on\\n\\nthe statute’s first clause, which, when read in conjunction with the second, makes\\n\\nclear that § 95.231 “is not a traditional statute of limitation but is a curative act\\n\\nwith a limitation provision.” Holland v. Hattaway, 438 So. 2d 456, 461 (Fla. 5th\\n\\nDist. Ct. App. 1983). The question we must answer is whether Summerlin\\n\\nnonetheless applies.\\n\\n A\\n\\n First, a threshold issue: Setting aside the United States’ involvement—and\\n\\nfor the moment, Summerlin—is the witness-related defect here the kind of\\n\\ntechnicality that § 95.231(1) operates to rectify? The district court held that it\\n\\nisn’t. The court reasoned that the statute “cannot be used to create title where none\\n\\nexisted” and that the absence of the prescribed number of witnesses rendered the\\n\\ndeed statutorily incurable.\\n\\n That is incorrect, as both parties agree. In its brief to us, the government\\n\\nconcedes that “the absence of a required witness signature” did not “invalidate[]\\n\\nthe 1998 deed beyond the reach of [the] statute.” Section 95.231(1) expressly\\n\\n\\n 7\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 8 of 15\\n\\n\\nstates that after the requisite five-year period a recorded deed “shall be held to have\\n\\nits purported effect” despite the “lack of . . . witness or witnesses.” Thus, at least\\n\\nin the ordinary case, a missing witness is precisely the kind of defect that the\\n\\nstatute was designed to cure.\\n\\n B\\n\\n The parties’ agreement ends there. They diverge over § 95.231(1)’s\\n\\noperation—in particular when, and how, the statute cures defective deeds. The\\n\\ndispute here turns on § 95.231(1)’s statement that an otherwise-defective deed\\n\\n“shall be held to have its purported effect” five years after it is recorded—and, in\\n\\nparticular, how to understand the phrase “shall be held.” Fla. Stat. § 95.231(1).\\n\\nMark contends that the statute’s curative properties are automatic and self-\\n\\nexecuting—and, therefore, that the once-defective 1998 deed was rendered “valid\\n\\nby operation of state law in 2003,” five years after the deed was originally\\n\\nrecorded. The government, in contrast, asserts that under § 95.231(1)’s language a\\n\\nvalid cure requires some form of formal adjudication—either judicial or\\n\\nadministrative—before marketable title transfers. As the government put the\\n\\nmatter at oral argument, the term “‘held’ requires a holding.” Oral Argument at\\n\\n13:23.\\n\\n Both readings are plausible. It’s true, as the government asserts, that the\\n\\n“shall be held” language could be understood to supply a rule of decision for an\\n\\n\\n 8\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 9 of 15\\n\\n\\nadjudicative proceeding, such that the phrase indeed “requires a holding.”\\n\\nAccording to one dictionary definition, for instance, “hold” means “to decide in a\\n\\njudicial ruling,” as in “the court held that the man was sane.” Webster’s Third New\\n\\nInternational Dictionary 1078 (2002). But the word “held” is not only, or even\\n\\nprincipally, court jargon. “[S]hall be held” could just as sensibly be construed to\\n\\nmean something like “shall be considered”—to take just one fairly prominent\\n\\nexample, “We hold these truths to be self-evident . . . .” And indeed, the same\\n\\ndictionary that supplies a court-related definition also—and in fact beforehand—\\n\\ndefines “hold” to mean “consider, regard, think, judge”—as in “held by many to be\\n\\nthe greatest contemporary tennis player.” Id. See also, e.g., Oxford English\\n\\nDictionary Online, http://www.oed.com (Dec. 28, 2018) (in relevant part, defining\\n\\n“hold” to mean, first, “[t]o accept and entertain as true [or] to believe” or “[t]o\\n\\nthink, consider, esteem, regard as,” and, alternatively, to mean “[o]f a judge or\\n\\ncourt: [t]o state as an authoritative opinion [or] to law down as a point of law [or]\\n\\ndecide”).\\n\\n Happily, it’s not up to us to pick and choose between these competing\\n\\nconstructions of § 95.231(1). We are bound by the Florida courts’ interpretation of\\n\\nFlorida law, see, e.g., Bradshaw v. Richey, 546 U.S. 74, 76 (2005), and although\\n\\nthe Florida Supreme Court hasn’t squarely addressed the specific question before\\n\\nus, the clear weight of Florida authority favors the held-as-“considered” reading.\\n\\n\\n 9\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 10 of 15\\n\\n\\nEarp & Shriver v. Earp, for instance, involved an appeal from a judgment\\n\\n“declaring void a deed for”—as here—“lack of subscribing witnesses.” 466 So. 2d\\n\\nat 1226. The Second DCA reversed, holding—without qualification or intimation\\n\\nthat anything further was required—that “[a]fter the requisite passage of time, the\\n\\nstatute cured the deficiency in subscribing witnesses.” Id. at 1227. Glanville v.\\n\\nGlanville, 856 So. 2d 1045 (Fla. 5th Dist. Ct. App. 2003), is to the same effect.\\n\\nThere, when a grantor sought to invalidate a deed on the ground that it was not\\n\\nproperly witnessed and acknowledged, the grantee raised § 95.231(1) as an\\n\\naffirmative defense. Citing Earp with approval, the Fifth DCA held that “the\\n\\nstatute bar[red] the claim” because the suit “was filed more than five years after the\\n\\ndeed was recorded.” Id. at 1047. Taken together, these cases show that, after five\\n\\nyears, the statute not only shields a once-defective deed from judicial attack, but\\n\\nalso—of its own force—affirmatively mends it back to health.\\n\\n We hold, then, that Mark didn’t have to go to court to enforce § 95.231(1)’s\\n\\ncurative provision. Instead, the deed was “held”—as in considered—“to have its\\n\\npurported effect” by operation of law in December 2003, five years after it was\\n\\ninitially recorded.\\n\\n III\\n\\n So where does that leave us vis-à-vis Summerlin? Under Summerlin,\\n\\n“[w]hen the United States becomes entitled to a claim, acting in its governmental\\n\\n\\n 10\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 11 of 15\\n\\n\\ncapacity and asserts its claim in that right, it cannot be deemed to have abdicated\\n\\nits governmental authority so as to become subject to a state statute putting a time\\n\\nlimit upon enforcement.” Summerlin, 310 U.S. at 417. Put slightly differently,\\n\\nwhen a statute of limitations “invalidate[s a] claim of the United States, so that it\\n\\ncannot be enforced at all,” the time bar—as against the government, anyway—is\\n\\nunenforceable. Id. In the sections that follow, we first review the doctrine and\\n\\nunderlying policy of the Summerlin rule, and then determine whether the rule\\n\\napplies in this case.\\n\\n A\\n\\n As noted at the outset, the so-called Summerlin rule dates to well before the\\n\\nSummerlin decision itself. Riding circuit in an early case, Justice Joseph Story\\n\\ninvoked the rule and, for support, cited English cases and commentaries stretching\\n\\nback to the 1200s. See United States v. Hoar, 26 F. Cas. 329, 330 (C.C.D. Mass.\\n\\n1821). The “centuries”-old nullum tempus principle, he observed, sprang from the\\n\\nconcern that the “king is always busied for the public good, and, therefore, has not\\n\\nleisure to assert his right within the times limited to subjects.” Id. So too in the\\n\\nyoung Republic, Story continued, there was a “great public policy of preserving\\n\\nthe public rights, revenues, and property from injury and loss, by the negligence of\\n\\npublic officers.” Id. The Supreme Court later agreed, acknowledging that nullum\\n\\ntempus survived the Revolution and the founding and inured to the United States as\\n\\n\\n 11\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 12 of 15\\n\\n\\nan “incident[] of . . . sovereignty.” United States v. Thompson, 98 U.S. 486, 489\\n\\n(1878).\\n\\n Over time, courts have made clear that nullum tempus provides a hedge\\n\\nagainst, well, bad government. In particular, the rule is founded on the concern\\n\\nthat the public suffers when the government sleeps on its rights. See United States\\n\\nv. Delgado, 321 F.3d 1338, 1349 (11th Cir. 2003) (“This principle protects public\\n\\nrights vested in the government for the benefit of all from the inadvertence of the\\n\\nagents upon which the government must necessarily rely.”) (quotations omitted).\\n\\nThus, whereas individual citizens can be penalized for inattentiveness in enforcing\\n\\ntheir rights, the United States cannot be. See, e.g., Guaranty Trust Co. of N.Y. v.\\n\\nUnited States, 304 U.S. 126, 132 (1938) (“Regardless of the form of government\\n\\nand independently of the royal prerogative once thought sufficient to justify it, the\\n\\nrule is supportable now because its benefit and advantage extend to every citizen,\\n\\nincluding the defendant, whose plea of laches or limitation it precludes.”).\\n\\n Importantly here, the Summerlin principle has its limits. In Guaranty Trust,\\n\\nfor example, the Supreme Court held that the nullum tempus rule is inapplicable\\n\\nwhere the United States has not “acquired a right free of a pre-existing infirmity.”\\n\\n304 U.S. at 142 (citing United States v. Buford, 28 U.S. 12, 29 (1830)). There, for\\n\\ninstance, because the relevant limitations period had expired before the United\\n\\nStates acquired the claim it sought to enforce, nullum tempus did not apply. See\\n\\n\\n 12\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 13 of 15\\n\\n\\nid.; see also United States v. California, 507 U.S. 746, 757–58 (1993) (applying\\n\\nsimilar logic in a subrogation claim and holding that “Summerlin is clearly\\n\\ndistinguishable”). As the Ninth Circuit nicely summarized matters in Bresson v.\\n\\nCommissioner, “[t]aken together, Summerlin and Guaranty Trust suggest two\\n\\ncountervailing principles.” 213 F.3d 1173, 1176 (9th Cir. 2000). “On the one\\n\\nhand,” the court explained, “if the United States comes into possession of a valid\\n\\nclaim, that claim cannot be ‘cut off’ later by a state statute of limitations.” Id. But\\n\\n“[o]n the other hand, if a claim already has become infirm (for example, when a\\n\\nlimitations period expires) by the time the United States acquires the purported\\n\\nright, the rule of Summerlin will not operate to revive the claim.” Id. In short, the\\n\\nSummerlin principle can’t create rights that do not otherwise exist.\\n\\n B\\n\\n What, then, of this case? Does Summerlin forestall the operation of\\n\\n§ 95.231(1) or not? Because, following Florida’s lead, we have held that the\\n\\nstatute is self-executing, the question admits of an easy answer. We hold that\\n\\nSummerlin is inapplicable here because, by operation of § 95.231(1), the Property\\n\\ndropped out of the estate in December 2003, five years after the deed was\\n\\noriginally recorded—and, importantly, roughly two years before Anthony died,\\n\\nand thus before any claim asserted by the United States could have accrued.\\n\\n\\n\\n\\n 13\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 14 of 15\\n\\n\\n As already explained, the Summerlin principle applies only “[w]hen the\\n\\nUnited States becomes entitled to a claim.” Summerlin, 310 U.S. at 417. If a valid\\n\\nclaim never materializes—or, as in Guaranty Trust, comes with a “pre-existing\\n\\ninfirmity”—then Summerlin doesn’t come into play. 304 U.S. at 142. Just so here.\\n\\nThe United States’ claim to Anthony’s estate accrued, at the earliest, when he died\\n\\nin December 2005. But by operation of § 95.231(1), Mark had acquired good title\\n\\nto the Property two years earlier, in December 2003—five years after the defective\\n\\ndeed was recorded. Accordingly, we do not have here “a situation in which a valid\\n\\ncause of action had accrued to the United States only to perish later through the\\n\\npassage of time.” Bresson, 213 F.3d at 1178. Rather, § 95.231(1) prevented the\\n\\nProperty from becoming part of the United States’ “claim” in the first place.\\n\\n Not only is this case not within the letter of the Summerlin rule, it is not\\n\\nwithin its spirit, either. This isn’t a situation in which the United States missed out\\n\\non a claim because some government employee was asleep at the switch and\\n\\nnegligently let a clock run out. Because Mark’s father didn’t die until 2005, no\\n\\namount of diligence on the part of the IRS could have made it possible for the\\n\\ngovernment to acquire a valid estate-tax claim before the deed was statutorily\\n\\ncured in 2003. As in Guaranty Trust, “the circumstances of the present case admit\\n\\nof no appeal” to Summerlin’s policy underpinnings, because “[t]here has been no\\n\\n\\n\\n\\n 14\\n\\f Case: 17-14546 Date Filed: 01/11/2019 Page: 15 of 15\\n\\n\\nneglect or delay by the United States or its agents, and it has lost no rights by any\\n\\nlapse of time.” 304 U.S. at 141.\\n\\n IV\\n\\n In sum, we hold that Fla. Stat. § 95.231(1) cured the deed by operation of\\n\\nlaw in December 2003, that the Property was at that point validly transferred to the\\n\\ntrust, and that Summerlin is inapplicable here because by the time the United States\\n\\nasserted its tax lien the Property no longer remained in the estate. We therefore\\n\\nreverse the district court’s entry of summary judgment on the United States’\\n\\nforeclosure claim as to the Property and remand for further proceedings consistent\\n\\nwith this opinion.\\n\\n REVERSED AND REMANDED.\\n\\n\\n\\n\\n 15\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":398,"cells":{"id":{"kind":"number","value":4581586,"string":"4,581,586"},"name":{"kind":"string","value":"Marcellinus PFEIFFER, Petitioner-Appellant, v. Rachel BACHOTET, Respondent- Appellee."},"name_abbreviation":{"kind":"string","value":"Marcelllinus Pfeiffer v. Rachel Bachotet"},"decision_date":{"kind":"string","value":"2019-01-15"},"docket_number":{"kind":"string","value":"18-13918"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Tjoflat, Pryor, Rosenbaum\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"Case: 18-13918 Date Filed: 01/15/2019 Page: 1 of 17\\n\\n\\n [PUBLISH]\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 18-13918\\n Non-Argument Calendar\\n ________________________\\n\\n D.C. Docket No. 1:18-cv-03446-RWS\\n\\n\\n\\n\\nMARCELLINUS PFEIFFER,\\n\\n Petitioner-Appellant,\\n\\nversus\\n\\nRACHEL BACHOTET,\\n\\n Respondent- Appellee.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Northern District of Georgia\\n ________________________\\n\\n (January 15, 2019)\\n\\nBefore TJOFLAT, WILLIAM PRYOR, and ROSENBAUM, Circuit Judges.\\n\\nPER CURIAM:\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 2 of 17\\n\\n\\n This case arises under the Hague Convention on the Civil Aspects of\\n\\nInternational Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S.\\n\\n89, also publ’d at https://www.hcch.net/en/instruments/conventions/full-\\n\\ntext/?cid=24 (last visited Dec. 18, 2018). Plaintiff-Petitioner Marcellinus Pfeiffer,\\n\\na German citizen, seeks the return of his children N.A.R. and R.H.E. from the\\n\\nUnited States to Switzerland. His ex-wife, Respondent Rachel Bachotet, a French\\n\\ncitizen who moved with the children from Switzerland to Georgia in June 2018,\\n\\nopposes the children’s return. Following briefing and two hearings, the district\\n\\ncourt denied Pfeiffer’s petition. After careful consideration, we now affirm the\\n\\ndistrict court’s decision for the reasons we explain below.\\n\\n I.\\n\\n Pfeiffer and Bachotet were married in France in 2010. Two years later, in\\n\\n2012, they moved to Switzerland. Pfeiffer and Bachotet have two children:\\n\\nN.A.R., a nine-year-old daughter, and R.H.E., an eight-year-old son. Until June\\n\\n17, 2018, both children had lived continuously in Switzerland since 2012.\\n\\n In June 2017, Pfeiffer and Bachotet obtained a divorce when the District\\n\\nCourt of Meilen, under the Canton of Zurich, Switzerland, issued a Sentence and\\n\\nDecree of Divorce (the “Divorce Judgment”). Among other provisions, this\\n\\nDivorce Judgment provided for the two children to “remain under shared custody\\n\\nof both parents.” It further “require[d] both parents’ consent [to relocate the\\n\\n 2\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 3 of 17\\n\\n\\nchildren] if the new place of residence is located abroad or if relocation has some\\n\\nimpact on the exercise of parental custody or visitation rights of either parent.”\\n\\nNonetheless, section 3.2.a) of the Divorce Judgment expressly specified that\\n\\nPfeiffer “does not object to the mother’s taking residence abroad (US or France)\\n\\nat/after[1] the end of the school term 2016/2017.”\\n\\n Other parts of the Divorce Judgment also indicated that it anticipated\\n\\nBachotet would relocate with the children outside of Switzerland. Paragraph\\n\\n3.2.c)aa provided, “Until [Bachotet] relocates with the children abroad (see section\\n\\n[3.]2.a[)], last paragraph above), the children’s father is entitled and obliged to\\n\\nexercise his obligation of care towards the children as follows . . . .” Similarly,\\n\\nparagraph 3.2.c)bb stated, “As from relocation of [Bachotet] and the children\\n\\nabroad (see section [3.]2.a[)] last paragraph) the following visitation regime shall\\n\\nbe effective . . . . Once per year, [Bachotet] shall pay for travelling costs (round\\n\\ntrip), when the children visit their father. Any other visitation-related costs shall be\\n\\nborne by the father.”\\n\\n\\n\\n 1\\n Pfeiffer’s translation of the Divorce Judgment—the original version of which was in\\nGerman—uses the word “at,” while Bachotet’s translates the word as “after.” The original\\nGerman version states, in relevant part, “Der Vater erklart sich damit einverstanden, dass die\\nMutter den Wohneitz der Kinder nach Ende des laufenden Schuljahres 2016/2017 ins Ausland\\nveriegt (in die USA oder nach Frankreich).” Pfeiffer’s proposed translation does not indicate its\\nsource. Bachotet’s translation indicates that it is a “certified translation of a document in the\\nGerman language” by Hazel Schauss, “[c]ertified and [s]worn Public Translator.” Nonetheless,\\nour analysis does not depend on whether the correct translation is “at” or “after,” so we do not\\nchoose between the two versions.\\n 3\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 4 of 17\\n\\n\\n Until Bachotet relocated, however, the Divorce Judgment awarded Pfeiffer\\n\\nparenting time with the children every other weekend, with additional time for\\n\\nholidays and during the summer. In 2018, the guardian appointed to oversee the\\n\\ncustodial arrangement between the parties modified the parents’ custodial\\n\\nagreement so that Pfeiffer and Bachotet had equal time with the children. But\\n\\nwhile she entered a new parenting plan, under Swiss law, she lacked the authority\\n\\nto modify the Divorce Judgment. Therefore, the Divorce Judgment remained\\n\\nunchanged.\\n\\n Meanwhile, according to Bachotet’s counsel’s undisputed proffer, on June\\n\\n28, 2017, at the end of the children’s 2016-17 school term, Bachotet began the\\n\\nrelocation process by applying for a K-1 (fiancé) Visa for herself and K-2 Visas for\\n\\nthe children to emigrate from Switzerland to the United States. Bachotet first\\n\\nreceived notice that the United States had authorized the Visas on May 17, 2018.\\n\\nUnder the terms of the Visas, they were valid until July 6, 2018.\\n\\n On June 9, a letter from Pfeiffer dated June 7 was delivered to Bachotet. In\\n\\nthat letter, Pfeiffer wrote that he “revoke[d] [his] consent to [Bachotet’s] relocation\\n\\nwith [the] children . . . abroad, in the US or in France, as expressed in the [Divorce\\n\\nJudgment] in 2017.” That same afternoon, Bachotet booked plane tickets for\\n\\nherself and her children to the United States for June 17, 2018.\\n\\n\\n\\n\\n 4\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 5 of 17\\n\\n\\n On June 15, 2018, Pfeiffer sent a letter to the District Court of Meilen, which\\n\\nhad jurisdiction over the Divorce Judgment. In that letter, Pfeiffer stated that he\\n\\n“revoke[d] [his] consent to the relocation of [the] children . . . to the United States\\n\\nof America.” He requested that the court “immediately impose a travel ban . . .\\n\\nwithout consultation with . . . Bachotet, in order to keep her from leaving\\n\\n[Switzerland] with the children.” The record contains no subsequent order from\\n\\nthe Swiss court acting on Pfeiffer’s request.\\n\\n On about June 17, 2018, Bachotet left Switzerland with the children for the\\n\\nUnited States. The three currently reside in Marietta, Georgia, with Bachotet’s\\n\\nAmerican fiancé.\\n\\n A month after Bachotet left Switzerland with the children, on July 17, 2018,\\n\\nPfeiffer filed this litigation seeking return of the children to Switzerland under the\\n\\nHague Convention. The district court held a hearing on the merits of Pfeiffer’s\\n\\npetition on August 24, 2018. Following the hearing, on August 29, 2018, the\\n\\ndistrict court issued an order denying Pfeiffer’s petition. The court reasoned that\\n\\nPfeiffer had failed to satisfy his burden to show that Bachotet’s removal of the\\n\\nchildren from Switzerland violated Pfeiffer’s rights of custody, in light of the\\n\\nDivorce Judgment’s provision awarding Bachotet “the exclusive right to determine\\n\\nwhether the children would remain in Switzerland or move to the United States or\\n\\nFrance at the end of the 2016/2017 school year.” Doc. 31 at 7-8.\\n\\n 5\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 6 of 17\\n\\n\\n Pfeiffer now appeals.\\n\\n II.\\n\\n Whether the Convention requires the return of the children to Switzerland or\\n\\ntheir continued residence in the United States presents a mixed question of law and\\n\\nfact. See Ruiz v. Tenorio, 392 F.3d 1247, 1251 (11th Cir. 2004). We review the\\n\\ndistrict court’s findings of fact for clear error and review de novo its legal\\n\\ndeterminations and application of the law to the facts. Id.\\n\\n This matter also raises questions of foreign law, in addition to issues of\\n\\ntreaty interpretation and of construction of United States law. Rule 44.1, Fed. R.\\n\\nCiv. P., governs our review of questions of foreign law. See Fed. R. Civ. P. 44.1;\\n\\nOzaltin v. Ozaltin, 708 F.3d 355, 368 (2d Cir. 2013). Rule 44.1 provides,\\n\\n A party who intends to raise an issue about a foreign\\n country’s law must give notice by a pleading or other\\n writing. In determining foreign law, the court may\\n consider any relevant material or source, including\\n testimony, whether or not submitted by a party or\\n admissible under the Federal Rules of Evidence. The\\n court’s determination must be treated as a ruling on a\\n question of law.\\n\\nFed. R. Civ. P. 44.1. We follow the dictates of Rule 44.1.\\n\\n III.\\n\\n Among other functions, the Hague Convention on the Civil Aspects of\\n\\nInternational Child Abduction “establishes legal rights and procedures for the\\n\\nprompt return of children who have been wrongfully removed or retained.” 22\\n 6\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 7 of 17\\n\\n\\nU.S.C. § 9001(a)(4). The United States ratified the Convention, and Congress\\n\\nimplemented it through the International Child Abduction Remedies Act\\n\\n(“ICARA”), Lozano v. Montoya Alvarez, 572 U.S. 1, 6 (2014), now codified at 22\\n\\nU.S.C. §§ 9001 et seq. Notably, under the Convention and ICARA, courts are\\n\\nempowered “to determine only rights under the Convention and not the merits of\\n\\nany underlying child custody claims.” Baran v. Beaty, 526 F.3d 1340, 1344 (11th\\n\\nCir. 2008) (quoting 22 U.S.C. § 9001(b)(4)).\\n\\n In particular, ICARA requires that “[c]hildren who are wrongfully removed\\n\\n. . . be promptly returned unless one of the narrow exceptions set forth in the\\n\\nConvention applies.” 22 U.S.C. § 9001(a)(4). The removal or retention of a child\\n\\nin a state that is a signatory to the Convention is wrongful if\\n\\n a) it is in breach of rights of custody attributed to a\\n person . . . under the law of the State in which the child\\n was habitually resident immediately before the removal\\n or retention; and\\n\\n b) at the time of removal or retention those rights were\\n actually exercised . . . or would have been exercised but\\n for the removal or retention.\\n\\nConvention art. 3. See also Ruiz, 392 F.3d at 1251.\\n\\n The party seeking the child’s return must establish by a preponderance of the\\n\\nevidence that the child was wrongfully removed or retained. Calixto v. Lesmes,\\n\\nNo. 17-15364, ___ F.3d ___, 2018 WL 6257410, *2 (11th Cir. Nov. 30, 2018)\\n\\n(citing Chafin v. Chafin, 742 F.3d 934, 938 (11th Cir. 2013) and 22 U.S.C. §\\n 7\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 8 of 17\\n\\n\\n9003(e)(1)(A)). As relevant here, satisfying that burden requires the petitioner to\\n\\nshow that (1) the child was a habitual resident of another country at the time she\\n\\nwas removed to the United States; (2) the removal breached the petitioner’s\\n\\ncustody rights under the law of that other country; and (3) the petitioner was, in\\n\\nfact, exercising those custody rights when the child was removed. Id. (citations\\n\\nomitted).\\n\\n Here, as we explain below, Pfeiffer has established that the children’s\\n\\nhabitual residence at the time of removal was Switzerland. But the district court\\n\\nnonetheless correctly denied Pfeiffer’s petition because Pfeiffer has not\\n\\ndemonstrated that Bachotet’s removal of the children violated his custody rights\\n\\nunder Swiss law.\\n\\nA. The children’s habitual residence at the time of removal was Switzerland.\\n\\n We begin with the children’s habitual residence on June 17, 2018, the day\\n\\nBachotet removed them from Switzerland. Neither the Hague Convention nor\\n\\nICARA defines the term “habitual residency.” Id. So we construe the term’s\\n\\n“ordinary meaning as understood in the public law of nations.” Santovincenzo v.\\n\\nEgan, 284 U.S. 30, 40 (1931) (citation and internal quotation marks omitted). The\\n\\nHigh Court of Justice in the United Kingdom has noted that a habitual residence is\\n\\nestablished when “the purpose of living where one does has a sufficient degree of\\n\\ncontinuity to be properly described as settled.” In re Bates, No. CA 122.89 at 9-\\n\\n 8\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 9 of 17\\n\\n\\n10, High Court of Justice, Fam. Div’n Ct. Royal Court of Justice, United Kingdom\\n\\n(1989).\\n\\n In identifying when a child’s habitual residence has been changed, we have\\n\\noffered further insight into the meaning of “habitual residency.” We have set forth\\n\\ntwo requirements to alter a child’s habitual residence: (1) the parents must share a\\n\\n“settled intention” to leave the old habitual residence behind; and (2) an “actual\\n\\nchange in geography and the passage of a sufficient length of time for the child to\\n\\nhave become acclimatized” must occur. Ruiz, 392 F.3d at 1252-53. Both must be\\n\\npresent to change a child’s habitual residence.\\n\\n We conclude, based on the second requirement, that the children’s habitual\\n\\nresidence had not changed as of the date of the challenged removal. Therefore, we\\n\\nneed not consider the first requirement regarding the parents’ shared intention.\\n\\nHere, as of the time of the challenged removal, June 17, 2018, the children—then\\n\\nseven and nine years old—had lived continuously in Switzerland for six years.\\n\\nNothing in the record indicates that they had ever lived in—or even spent\\n\\nsignificant time in—the United States as of that date. Nor does the record suggest\\n\\nor do the parties argue that any other country could have served as the children’s\\n\\nhabitual residence as of June 17, 2018. And since acclimatization cannot take\\n\\nplace without the parties’ physical presence in a new country, the children’s\\n\\nhabitual residence as of the date of removal was Switzerland.\\n\\n 9\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 10 of 17\\n\\n\\nB. Bachotet’s removal of the children from Switzerland did not violate Pfeiffer’s\\ncustody rights under Swiss law.\\n\\n The Convention defines the terms “rights of custody” and “rights of access”\\n\\nas follows:\\n\\n Article 5: For the purposes of this Convention—\\n\\n a: “rights of custody” shall include rights relating to the\\n care of the person of the child and, in particular, the right\\n to determine the child’s place of residence;\\n\\n b: “rights of access” shall include the right to take a\\n child for a limited period of time to a place other than the\\n child’s habitual residence.\\n\\nConvention, art. 5. Perhaps a simpler way of describing “rights of access” is as\\n\\nmere “visitation rights.” See 22 U.S.C. § 9002(7). Rights of custody, on the other\\n\\nhand, are broader rights; as we have noted above and as Article 5(a) states, those\\n\\nrights include “rights relating to the care of the person of the child and, in\\n\\nparticular, the right to determine the child’s place of residence.” Convention art.\\n\\n5(a) (emphasis added). In resolving this petition for return of the children, we\\n\\nmust employ these definitions, as opposed to those of local law, common law, or\\n\\nany other source, since doing so “ensures international consistency in interpreting\\n\\nthe Convention.” Abbott v. Abbott, 560 U.S. 1, 12 (2010).\\n\\n We ascertain “the substance of parental rights” in any given case by\\n\\nconsulting the law of the country “in which the child was habitually resident\\n\\nimmediately before the removal[,] . . . or . . . a judicial or administrative decision,\\n 10\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 11 of 17\\n\\n\\nor . . . an agreement having legal effect under the law of that [country].” Ozaltin,\\n\\n708 F.3d at 367; Convention art. 3. But we evaluate whether those rights qualify\\n\\nas “rights of custody” under the Convention’s definition of the term. Ozaltin, 708\\n\\nF.3d at 367.\\n\\n Since the Convention treats rights of custody and rights of access differently,\\n\\nit is important to distinguish between the two. See id. at 13. When a removal or\\n\\nretention violates a petitioner’s rights of custody, the Convention authorizes the\\n\\nreturn of the child. See Convention art. 1. But it does not do so for a breach of\\n\\nrights of access. Abbott, 561 U.S. at 9. Rather, the Convention “requires\\n\\ncontracting states ‘to promote the peaceful enjoyment of access rights.’” Id. at 13\\n\\n(quoting Convention art. 21).\\n\\n With these considerations in mind, we explore the substance of parental\\n\\nrights under Swiss law. Article 133 of the Swiss Civil Code, Code Civil [CC]\\n\\n[Civil Code] Dec. 10, 1907, SR 210, RS 210, as amended, art. 133, endows courts\\n\\nwith the authority to “regulate[] parental rights and obligations in accordance with\\n\\nthe provisions on the legal effects of the parent-child relationship. . . . In particular\\n\\nit [has the power to] regulate[]: . . . residence . . . .” Under Swiss law, in cases like\\n\\nthis one, where the parents enjoy joint parental responsibility, either the consent of\\n\\nthe other parent or “a decision of the court or the child protection authority” is\\n\\nnecessary before one parent may establish a new place of residence outside\\n\\n 11\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 12 of 17\\n\\n\\nSwitzerland. Swiss Civil Code, Art. 301a, Code Civil [CC] [Civil Code] Dec. 10,\\n\\n1907, SR 210, RS 210, as amended, art. 301a. 2\\n\\n Here, the Divorce Judgment constituted a decision of the Swiss court. And\\n\\nthough Swiss law generally provides parents with a ne exeat right as it pertains to\\n\\nremoval of a child from Switzerland, 3 see Swiss Civil Code, Art. 301a, the Divorce\\n\\nJudgment here expressly empowered Bachotet to relocate with the children to\\n\\neither the United States or France “at [or possibly after] the end of the school term\\n\\n2016/2017.” Section 3.2.a); see also Section 3.2.c)aa (“Until [Bachotet] relocates\\n\\nwith the children abroad (see section [3.]2.a[)] . . . the children’s father is entitled\\n\\nand obliged to exercise his obligation of care towards the children as follows . . .\\n\\n.”) (emphasis added); Section 3.2.c)bb (“As from relocation of [Bachotet] and the\\n\\nchildren abroad (see section [3.]2.a[)] . . . the following visitation regime shall be\\n\\neffective . . . . Once per year, [Bachotet] shall pay for travelling costs (round trip),\\n\\nwhen the children visit their father. Any other visitation-related costs shall be\\n\\nborne by the father.”) (emphasis added). So by Swiss law, under the Divorce\\n\\nJudgment, Bachotet had the sole rights of custody as they pertained to determining\\n\\nwhether to move the children to the United States.\\n\\n\\n\\n\\n 2\\n English translations of these portions of the Swiss Civil Code are available at\\nhttps://www.admin.ch/opc/en/classified-compilation/19070042/index.html.\\n 3\\n A ne exeat right is “the authority to consent before the other parent may take the child to\\nanother country.” Abbott, 560 U.S. at 5.\\n 12\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 13 of 17\\n\\n\\n Pfeiffer does not contest this analysis, but he nonetheless asserts that events\\n\\ntranspiring after the court entered the Divorce Judgment revoked Bachotet’s\\n\\nauthority to remove the children from Switzerland. In support of this claim,\\n\\nPfeiffer urges three theories.\\n\\n First, Pfeiffer argues that Bachotet’s authority to remove the children was\\n\\ntime-dependent and automatically expired when Bachotet failed to move them to\\n\\nthe United States in June 2017. But even assuming that the Divorce Judgment is\\n\\ntechnically translated to mean “at the end of the 2016/2017 school term” rather\\n\\nthan “after the end of the 2016/2017 school term,” as Pfeiffer asserts, the record\\n\\nshows that Bachotet began taking steps immediately at the end of the 2016/2017\\n\\nschool term to move the children to the United States. It further indicates that\\n\\nBachotet began the relocation process the same month that the children’s\\n\\n2016/2017 school term ended—June 2017. And it reflects that Bachotet did not\\n\\nreceive notice that the children’s visas for relocation to the United States had been\\n\\napproved until May 17, 2018. Bachotet then promptly obtained plane tickets and\\n\\nmoved the children within a month of notification. Under these circumstances, we\\n\\ncannot conclude that Bachotet did not take steps to remove the children as soon as\\n\\npossible after the end of the 2016/2017 school term.\\n\\n Second, Pfeiffer contends that, following the court’s entry of the Divorce\\n\\nJudgment, he reestablished his rights of custody to determine the children’s place\\n\\n 13\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 14 of 17\\n\\n\\nof residence. Pfeiffer bases this claim on the modification to the custodial\\n\\nagreement that the guardian reached and the parents agreed to. But Pfeiffer has not\\n\\nshowed that the guardian’s modification of the custodial agreement cognizably\\n\\nrevoked the court’s order authorizing Bachotet to remove the children to the\\n\\nUnited States at the end of the 2016/2017 school term.\\n\\n Pfeiffer has not pointed to legal authority demonstrating that the guardian’s\\n\\namendment of the custodial agreement modified the Swiss Court’s Divorce\\n\\nJudgment. On the contrary, an August 21, 2018, letter from Pfeiffer’s Swiss\\n\\nattorney, which Pfeiffer filed with the district court, indicates his attorney’s view\\n\\nthat, at the time that the guardian modified the custodial agreement, only the Swiss\\n\\ncourt had the authority to legally amend the Divorce Judgment in accordance with\\n\\nthe changes to the custodial agreement.\\n\\n Nor has Pfeiffer showed that the Swiss court ever amended the Divorce\\n\\nJudgment to incorporate or otherwise recognize the modified custodial agreement,\\n\\neven though under Swiss law, the Swiss court retained jurisdiction to amend its\\n\\norders regarding custody. In fact, Pfeiffer’s June 15, 2018, letter to the Swiss court\\n\\nthat issued the Divorce Judgment suggests that Pfeiffer was aware of this problem.\\n\\nIn that letter, Pfeiffer requested amendment of the Divorce Judgment so that\\n\\nBachotet no longer had the sole rights of custody to determine whether to move the\\n\\nchildren to the United States. But Pfeiffer has not supplied the Court with any\\n\\n 14\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 15 of 17\\n\\n\\nindication that the Swiss court ever granted his request and modified the Divorce\\n\\nJudgment as he asked. So the modified custodial agreement is not cognizable as “a\\n\\ndecision of the court or the child protection authority.” Code Civil [CC] [Civil\\n\\nCode] Dec. 10, 1907, SR 210, RS 210, as amended, art. 301a. And as a result, it\\n\\ndoes not rise to the level of a “judicial or administrative decision” under the\\n\\nConvention and cannot amend the Divorce Judgment, which governs the\\n\\nsubstantive parental rights here.\\n\\n Finally, Pfeiffer argues that we should decide this case in line with the Third\\n\\nCircuit’s decision in Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006).4 But\\n\\nwe find Karkkainen to be materially distinguishable.\\n\\n There, the parents entered into a Stipulation in Custody that provided that\\n\\nthe mother “shall have primary physical custody of [the child], including the right\\n\\nof the child’s residence in Finland . . . .” Id. at 285. Though the Stipulation was\\n\\nsigned by a common pleas judge, it was never actually filed with the court. Thus,\\n\\nthe Third Circuit described it as “an informal custody agreement . . . , not a binding\\n\\ncourt order.” Id. at 293. The court also concluded that the parents’ shared\\n\\nintention concerning where the child would live changed after the parties entered\\n\\ninto the Stipulation but before the child was retained in the United States. Id. And\\n\\n 4\\n Pfeiffer actually raises this argument under the intent aspect of the habitual-residence\\ninquiry, not under the “rights of custody” analysis. We did not reach the intent issue under the\\nhabitual-residence inquiry and as Pfeiffer has argued Karkkainen, he seems to suggest possible\\nimplications for the “rights of custody” analysis as well, so we evaluate it here.\\n 15\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 16 of 17\\n\\n\\nsince the parents’ shared intention about the child’s habitual residence must be\\n\\nascertained as of the time of removal or retention, the court concluded, the\\n\\nStipulation “was no longer binding.” Id. Pfeiffer contends that Karkkainen\\n\\ndemonstrates that “an agreement by parents to allow for the relocation of the\\n\\nchildren can be amended informally by their actions.”\\n\\n The problem for Pfeiffer, though, is that Karkkainen concerns divining the\\n\\nparents’ shared intent for the child’s habitual residence—an issue of fact. But the\\n\\ninquiry into who possesses the right to determine the child’s place of residence is a\\n\\nquestion of law—or, at the very least, a mixed question of fact and law. And a\\n\\nparent’s formal expression of a change in her or his desire about a child’s place of\\n\\nresidence cannot, in and of itself, legally somehow modify a court order. For this\\n\\nreason, on this record, we do not find Karkkainen instructive on the question of\\n\\nascertaining which parent or parents enjoy the right to determine the child’s place\\n\\nof residence.\\n\\n In short, under the Divorce Agreement, Pfeiffer does not enjoy a ne exeat\\n\\nright as it pertains to Bachotet’s authority to move the children from Switzerland to\\n\\nthe United States. And since the Divorce Agreement is a court order that has not\\n\\nbeen modified, it constitutes Swiss law for purposes of ascertaining the parties’\\n\\nrights of custody to determine the children’s place of residence. We are therefore\\n\\nbound to apply its terms and affirm the district court’s conclusion that Pfeiffer has\\n\\n 16\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 17 of 17\\n\\n\\nnot satisfied his burden to establish a prima facie case of wrongful removal under\\n\\nthe Hague Convention.\\n\\n III.\\n\\n For the foregoing reasons, we affirm the judgment of the district court\\n\\ndenying Pfeiffer’s petition for return of the children to Switzerland under the\\n\\nHague Convention.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 17\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4358839/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"TJOFLAT"},"judge2":{"kind":"string","value":"PRYOR"},"judge3":{"kind":"string","value":"ROSENBAUM"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4581586/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Marcellinus PFEIFFER, Petitioner-Appellant, v. Rachel BACHOTET, Respondent- Appellee.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-01-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-13918 Date Filed: 01/15/2019 Page: 1 of 17\n\n\n [PUBLISH]\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 18-13918\n Non-Argument Calendar\n ________________________\n\n D.C. Docket No. 1:18-cv-03446-RWS\n\n\n\n\nMARCELLINUS PFEIFFER,\n\n Petitioner-Appellant,\n\nversus\n\nRACHEL BACHOTET,\n\n Respondent- Appellee.\n\n ________________________\n\n Appeal from the United States District Court\n for the Northern District of Georgia\n ________________________\n\n (January 15, 2019)\n\nBefore TJOFLAT, WILLIAM PRYOR, and ROSENBAUM, Circuit Judges.\n\nPER CURIAM:\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 2 of 17\n\n\n This case arises under the Hague Convention on the Civil Aspects of\n\nInternational Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S.\n\n89, also publ’d at https://www.hcch.net/en/instruments/conventions/full-\n\ntext/?cid=24 (last visited Dec. 18, 2018). Plaintiff-Petitioner Marcellinus Pfeiffer,\n\na German citizen, seeks the return of his children N.A.R. and R.H.E. from the\n\nUnited States to Switzerland. His ex-wife, Respondent Rachel Bachotet, a French\n\ncitizen who moved with the children from Switzerland to Georgia in June 2018,\n\nopposes the children’s return. Following briefing and two hearings, the district\n\ncourt denied Pfeiffer’s petition. After careful consideration, we now affirm the\n\ndistrict court’s decision for the reasons we explain below.\n\n I.\n\n Pfeiffer and Bachotet were married in France in 2010. Two years later, in\n\n2012, they moved to Switzerland. Pfeiffer and Bachotet have two children:\n\nN.A.R., a nine-year-old daughter, and R.H.E., an eight-year-old son. Until June\n\n17, 2018, both children had lived continuously in Switzerland since 2012.\n\n In June 2017, Pfeiffer and Bachotet obtained a divorce when the District\n\nCourt of Meilen, under the Canton of Zurich, Switzerland, issued a Sentence and\n\nDecree of Divorce (the “Divorce Judgment”). Among other provisions, this\n\nDivorce Judgment provided for the two children to “remain under shared custody\n\nof both parents.” It further “require[d] both parents’ consent [to relocate the\n\n 2\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 3 of 17\n\n\nchildren] if the new place of residence is located abroad or if relocation has some\n\nimpact on the exercise of parental custody or visitation rights of either parent.”\n\nNonetheless, section 3.2.a) of the Divorce Judgment expressly specified that\n\nPfeiffer “does not object to the mother’s taking residence abroad (US or France)\n\nat/after[1] the end of the school term 2016/2017.”\n\n Other parts of the Divorce Judgment also indicated that it anticipated\n\nBachotet would relocate with the children outside of Switzerland. Paragraph\n\n3.2.c)aa provided, “Until [Bachotet] relocates with the children abroad (see section\n\n[3.]2.a[)], last paragraph above), the children’s father is entitled and obliged to\n\nexercise his obligation of care towards the children as follows . . . .” Similarly,\n\nparagraph 3.2.c)bb stated, “As from relocation of [Bachotet] and the children\n\nabroad (see section [3.]2.a[)] last paragraph) the following visitation regime shall\n\nbe effective . . . . Once per year, [Bachotet] shall pay for travelling costs (round\n\ntrip), when the children visit their father. Any other visitation-related costs shall be\n\nborne by the father.”\n\n\n\n 1\n Pfeiffer’s translation of the Divorce Judgment—the original version of which was in\nGerman—uses the word “at,” while Bachotet’s translates the word as “after.” The original\nGerman version states, in relevant part, “Der Vater erklart sich damit einverstanden, dass die\nMutter den Wohneitz der Kinder nach Ende des laufenden Schuljahres 2016/2017 ins Ausland\nveriegt (in die USA oder nach Frankreich).” Pfeiffer’s proposed translation does not indicate its\nsource. Bachotet’s translation indicates that it is a “certified translation of a document in the\nGerman language” by Hazel Schauss, “[c]ertified and [s]worn Public Translator.” Nonetheless,\nour analysis does not depend on whether the correct translation is “at” or “after,” so we do not\nchoose between the two versions.\n 3\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 4 of 17\n\n\n Until Bachotet relocated, however, the Divorce Judgment awarded Pfeiffer\n\nparenting time with the children every other weekend, with additional time for\n\nholidays and during the summer. In 2018, the guardian appointed to oversee the\n\ncustodial arrangement between the parties modified the parents’ custodial\n\nagreement so that Pfeiffer and Bachotet had equal time with the children. But\n\nwhile she entered a new parenting plan, under Swiss law, she lacked the authority\n\nto modify the Divorce Judgment. Therefore, the Divorce Judgment remained\n\nunchanged.\n\n Meanwhile, according to Bachotet’s counsel’s undisputed proffer, on June\n\n28, 2017, at the end of the children’s 2016-17 school term, Bachotet began the\n\nrelocation process by applying for a K-1 (fiancé) Visa for herself and K-2 Visas for\n\nthe children to emigrate from Switzerland to the United States. Bachotet first\n\nreceived notice that the United States had authorized the Visas on May 17, 2018.\n\nUnder the terms of the Visas, they were valid until July 6, 2018.\n\n On June 9, a letter from Pfeiffer dated June 7 was delivered to Bachotet. In\n\nthat letter, Pfeiffer wrote that he “revoke[d] [his] consent to [Bachotet’s] relocation\n\nwith [the] children . . . abroad, in the US or in France, as expressed in the [Divorce\n\nJudgment] in 2017.” That same afternoon, Bachotet booked plane tickets for\n\nherself and her children to the United States for June 17, 2018.\n\n\n\n\n 4\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 5 of 17\n\n\n On June 15, 2018, Pfeiffer sent a letter to the District Court of Meilen, which\n\nhad jurisdiction over the Divorce Judgment. In that letter, Pfeiffer stated that he\n\n“revoke[d] [his] consent to the relocation of [the] children . . . to the United States\n\nof America.” He requested that the court “immediately impose a travel ban . . .\n\nwithout consultation with . . . Bachotet, in order to keep her from leaving\n\n[Switzerland] with the children.” The record contains no subsequent order from\n\nthe Swiss court acting on Pfeiffer’s request.\n\n On about June 17, 2018, Bachotet left Switzerland with the children for the\n\nUnited States. The three currently reside in Marietta, Georgia, with Bachotet’s\n\nAmerican fiancé.\n\n A month after Bachotet left Switzerland with the children, on July 17, 2018,\n\nPfeiffer filed this litigation seeking return of the children to Switzerland under the\n\nHague Convention. The district court held a hearing on the merits of Pfeiffer’s\n\npetition on August 24, 2018. Following the hearing, on August 29, 2018, the\n\ndistrict court issued an order denying Pfeiffer’s petition. The court reasoned that\n\nPfeiffer had failed to satisfy his burden to show that Bachotet’s removal of the\n\nchildren from Switzerland violated Pfeiffer’s rights of custody, in light of the\n\nDivorce Judgment’s provision awarding Bachotet “the exclusive right to determine\n\nwhether the children would remain in Switzerland or move to the United States or\n\nFrance at the end of the 2016/2017 school year.” Doc. 31 at 7-8.\n\n 5\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 6 of 17\n\n\n Pfeiffer now appeals.\n\n II.\n\n Whether the Convention requires the return of the children to Switzerland or\n\ntheir continued residence in the United States presents a mixed question of law and\n\nfact. See Ruiz v. Tenorio, 392 F.3d 1247, 1251 (11th Cir. 2004). We review the\n\ndistrict court’s findings of fact for clear error and review de novo its legal\n\ndeterminations and application of the law to the facts. Id.\n\n This matter also raises questions of foreign law, in addition to issues of\n\ntreaty interpretation and of construction of United States law. Rule 44.1, Fed. R.\n\nCiv. P., governs our review of questions of foreign law. See Fed. R. Civ. P. 44.1;\n\nOzaltin v. Ozaltin, 708 F.3d 355, 368 (2d Cir. 2013). Rule 44.1 provides,\n\n A party who intends to raise an issue about a foreign\n country’s law must give notice by a pleading or other\n writing. In determining foreign law, the court may\n consider any relevant material or source, including\n testimony, whether or not submitted by a party or\n admissible under the Federal Rules of Evidence. The\n court’s determination must be treated as a ruling on a\n question of law.\n\nFed. R. Civ. P. 44.1. We follow the dictates of Rule 44.1.\n\n III.\n\n Among other functions, the Hague Convention on the Civil Aspects of\n\nInternational Child Abduction “establishes legal rights and procedures for the\n\nprompt return of children who have been wrongfully removed or retained.” 22\n 6\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 7 of 17\n\n\nU.S.C. § 9001(a)(4). The United States ratified the Convention, and Congress\n\nimplemented it through the International Child Abduction Remedies Act\n\n(“ICARA”), Lozano v. Montoya Alvarez, 572 U.S. 1, 6 (2014), now codified at 22\n\nU.S.C. §§ 9001 et seq. Notably, under the Convention and ICARA, courts are\n\nempowered “to determine only rights under the Convention and not the merits of\n\nany underlying child custody claims.” Baran v. Beaty, 526 F.3d 1340, 1344 (11th\n\nCir. 2008) (quoting 22 U.S.C. § 9001(b)(4)).\n\n In particular, ICARA requires that “[c]hildren who are wrongfully removed\n\n. . . be promptly returned unless one of the narrow exceptions set forth in the\n\nConvention applies.” 22 U.S.C. § 9001(a)(4). The removal or retention of a child\n\nin a state that is a signatory to the Convention is wrongful if\n\n a) it is in breach of rights of custody attributed to a\n person . . . under the law of the State in which the child\n was habitually resident immediately before the removal\n or retention; and\n\n b) at the time of removal or retention those rights were\n actually exercised . . . or would have been exercised but\n for the removal or retention.\n\nConvention art. 3. See also Ruiz, 392 F.3d at 1251.\n\n The party seeking the child’s return must establish by a preponderance of the\n\nevidence that the child was wrongfully removed or retained. Calixto v. Lesmes,\n\nNo. 17-15364, ___ F.3d ___, 2018 WL 6257410, *2 (11th Cir. Nov. 30, 2018)\n\n(citing Chafin v. Chafin, 742 F.3d 934, 938 (11th Cir. 2013) and 22 U.S.C. §\n 7\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 8 of 17\n\n\n9003(e)(1)(A)). As relevant here, satisfying that burden requires the petitioner to\n\nshow that (1) the child was a habitual resident of another country at the time she\n\nwas removed to the United States; (2) the removal breached the petitioner’s\n\ncustody rights under the law of that other country; and (3) the petitioner was, in\n\nfact, exercising those custody rights when the child was removed. Id. (citations\n\nomitted).\n\n Here, as we explain below, Pfeiffer has established that the children’s\n\nhabitual residence at the time of removal was Switzerland. But the district court\n\nnonetheless correctly denied Pfeiffer’s petition because Pfeiffer has not\n\ndemonstrated that Bachotet’s removal of the children violated his custody rights\n\nunder Swiss law.\n\nA. The children’s habitual residence at the time of removal was Switzerland.\n\n We begin with the children’s habitual residence on June 17, 2018, the day\n\nBachotet removed them from Switzerland. Neither the Hague Convention nor\n\nICARA defines the term “habitual residency.” Id. So we construe the term’s\n\n“ordinary meaning as understood in the public law of nations.” Santovincenzo v.\n\nEgan, 284 U.S. 30, 40 (1931) (citation and internal quotation marks omitted). The\n\nHigh Court of Justice in the United Kingdom has noted that a habitual residence is\n\nestablished when “the purpose of living where one does has a sufficient degree of\n\ncontinuity to be properly described as settled.” In re Bates, No. CA 122.89 at 9-\n\n 8\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 9 of 17\n\n\n10, High Court of Justice, Fam. Div’n Ct. Royal Court of Justice, United Kingdom\n\n(1989).\n\n In identifying when a child’s habitual residence has been changed, we have\n\noffered further insight into the meaning of “habitual residency.” We have set forth\n\ntwo requirements to alter a child’s habitual residence: (1) the parents must share a\n\n“settled intention” to leave the old habitual residence behind; and (2) an “actual\n\nchange in geography and the passage of a sufficient length of time for the child to\n\nhave become acclimatized” must occur. Ruiz, 392 F.3d at 1252-53. Both must be\n\npresent to change a child’s habitual residence.\n\n We conclude, based on the second requirement, that the children’s habitual\n\nresidence had not changed as of the date of the challenged removal. Therefore, we\n\nneed not consider the first requirement regarding the parents’ shared intention.\n\nHere, as of the time of the challenged removal, June 17, 2018, the children—then\n\nseven and nine years old—had lived continuously in Switzerland for six years.\n\nNothing in the record indicates that they had ever lived in—or even spent\n\nsignificant time in—the United States as of that date. Nor does the record suggest\n\nor do the parties argue that any other country could have served as the children’s\n\nhabitual residence as of June 17, 2018. And since acclimatization cannot take\n\nplace without the parties’ physical presence in a new country, the children’s\n\nhabitual residence as of the date of removal was Switzerland.\n\n 9\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 10 of 17\n\n\nB. Bachotet’s removal of the children from Switzerland did not violate Pfeiffer’s\ncustody rights under Swiss law.\n\n The Convention defines the terms “rights of custody” and “rights of access”\n\nas follows:\n\n Article 5: For the purposes of this Convention—\n\n a: “rights of custody” shall include rights relating to the\n care of the person of the child and, in particular, the right\n to determine the child’s place of residence;\n\n b: “rights of access” shall include the right to take a\n child for a limited period of time to a place other than the\n child’s habitual residence.\n\nConvention, art. 5. Perhaps a simpler way of describing “rights of access” is as\n\nmere “visitation rights.” See 22 U.S.C. § 9002(7). Rights of custody, on the other\n\nhand, are broader rights; as we have noted above and as Article 5(a) states, those\n\nrights include “rights relating to the care of the person of the child and, in\n\nparticular, the right to determine the child’s place of residence.” Convention art.\n\n5(a) (emphasis added). In resolving this petition for return of the children, we\n\nmust employ these definitions, as opposed to those of local law, common law, or\n\nany other source, since doing so “ensures international consistency in interpreting\n\nthe Convention.” Abbott v. Abbott, 560 U.S. 1, 12 (2010).\n\n We ascertain “the substance of parental rights” in any given case by\n\nconsulting the law of the country “in which the child was habitually resident\n\nimmediately before the removal[,] . . . or . . . a judicial or administrative decision,\n 10\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 11 of 17\n\n\nor . . . an agreement having legal effect under the law of that [country].” Ozaltin,\n\n708 F.3d at 367; Convention art. 3. But we evaluate whether those rights qualify\n\nas “rights of custody” under the Convention’s definition of the term. Ozaltin, 708\n\nF.3d at 367.\n\n Since the Convention treats rights of custody and rights of access differently,\n\nit is important to distinguish between the two. See id. at 13. When a removal or\n\nretention violates a petitioner’s rights of custody, the Convention authorizes the\n\nreturn of the child. See Convention art. 1. But it does not do so for a breach of\n\nrights of access. Abbott, 561 U.S. at 9. Rather, the Convention “requires\n\ncontracting states ‘to promote the peaceful enjoyment of access rights.’” Id. at 13\n\n(quoting Convention art. 21).\n\n With these considerations in mind, we explore the substance of parental\n\nrights under Swiss law. Article 133 of the Swiss Civil Code, Code Civil [CC]\n\n[Civil Code] Dec. 10, 1907, SR 210, RS 210, as amended, art. 133, endows courts\n\nwith the authority to “regulate[] parental rights and obligations in accordance with\n\nthe provisions on the legal effects of the parent-child relationship. . . . In particular\n\nit [has the power to] regulate[]: . . . residence . . . .” Under Swiss law, in cases like\n\nthis one, where the parents enjoy joint parental responsibility, either the consent of\n\nthe other parent or “a decision of the court or the child protection authority” is\n\nnecessary before one parent may establish a new place of residence outside\n\n 11\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 12 of 17\n\n\nSwitzerland. Swiss Civil Code, Art. 301a, Code Civil [CC] [Civil Code] Dec. 10,\n\n1907, SR 210, RS 210, as amended, art. 301a. 2\n\n Here, the Divorce Judgment constituted a decision of the Swiss court. And\n\nthough Swiss law generally provides parents with a ne exeat right as it pertains to\n\nremoval of a child from Switzerland, 3 see Swiss Civil Code, Art. 301a, the Divorce\n\nJudgment here expressly empowered Bachotet to relocate with the children to\n\neither the United States or France “at [or possibly after] the end of the school term\n\n2016/2017.” Section 3.2.a); see also Section 3.2.c)aa (“Until [Bachotet] relocates\n\nwith the children abroad (see section [3.]2.a[)] . . . the children’s father is entitled\n\nand obliged to exercise his obligation of care towards the children as follows . . .\n\n.”) (emphasis added); Section 3.2.c)bb (“As from relocation of [Bachotet] and the\n\nchildren abroad (see section [3.]2.a[)] . . . the following visitation regime shall be\n\neffective . . . . Once per year, [Bachotet] shall pay for travelling costs (round trip),\n\nwhen the children visit their father. Any other visitation-related costs shall be\n\nborne by the father.”) (emphasis added). So by Swiss law, under the Divorce\n\nJudgment, Bachotet had the sole rights of custody as they pertained to determining\n\nwhether to move the children to the United States.\n\n\n\n\n 2\n English translations of these portions of the Swiss Civil Code are available at\nhttps://www.admin.ch/opc/en/classified-compilation/19070042/index.html.\n 3\n A ne exeat right is “the authority to consent before the other parent may take the child to\nanother country.” Abbott, 560 U.S. at 5.\n 12\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 13 of 17\n\n\n Pfeiffer does not contest this analysis, but he nonetheless asserts that events\n\ntranspiring after the court entered the Divorce Judgment revoked Bachotet’s\n\nauthority to remove the children from Switzerland. In support of this claim,\n\nPfeiffer urges three theories.\n\n First, Pfeiffer argues that Bachotet’s authority to remove the children was\n\ntime-dependent and automatically expired when Bachotet failed to move them to\n\nthe United States in June 2017. But even assuming that the Divorce Judgment is\n\ntechnically translated to mean “at the end of the 2016/2017 school term” rather\n\nthan “after the end of the 2016/2017 school term,” as Pfeiffer asserts, the record\n\nshows that Bachotet began taking steps immediately at the end of the 2016/2017\n\nschool term to move the children to the United States. It further indicates that\n\nBachotet began the relocation process the same month that the children’s\n\n2016/2017 school term ended—June 2017. And it reflects that Bachotet did not\n\nreceive notice that the children’s visas for relocation to the United States had been\n\napproved until May 17, 2018. Bachotet then promptly obtained plane tickets and\n\nmoved the children within a month of notification. Under these circumstances, we\n\ncannot conclude that Bachotet did not take steps to remove the children as soon as\n\npossible after the end of the 2016/2017 school term.\n\n Second, Pfeiffer contends that, following the court’s entry of the Divorce\n\nJudgment, he reestablished his rights of custody to determine the children’s place\n\n 13\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 14 of 17\n\n\nof residence. Pfeiffer bases this claim on the modification to the custodial\n\nagreement that the guardian reached and the parents agreed to. But Pfeiffer has not\n\nshowed that the guardian’s modification of the custodial agreement cognizably\n\nrevoked the court’s order authorizing Bachotet to remove the children to the\n\nUnited States at the end of the 2016/2017 school term.\n\n Pfeiffer has not pointed to legal authority demonstrating that the guardian’s\n\namendment of the custodial agreement modified the Swiss Court’s Divorce\n\nJudgment. On the contrary, an August 21, 2018, letter from Pfeiffer’s Swiss\n\nattorney, which Pfeiffer filed with the district court, indicates his attorney’s view\n\nthat, at the time that the guardian modified the custodial agreement, only the Swiss\n\ncourt had the authority to legally amend the Divorce Judgment in accordance with\n\nthe changes to the custodial agreement.\n\n Nor has Pfeiffer showed that the Swiss court ever amended the Divorce\n\nJudgment to incorporate or otherwise recognize the modified custodial agreement,\n\neven though under Swiss law, the Swiss court retained jurisdiction to amend its\n\norders regarding custody. In fact, Pfeiffer’s June 15, 2018, letter to the Swiss court\n\nthat issued the Divorce Judgment suggests that Pfeiffer was aware of this problem.\n\nIn that letter, Pfeiffer requested amendment of the Divorce Judgment so that\n\nBachotet no longer had the sole rights of custody to determine whether to move the\n\nchildren to the United States. But Pfeiffer has not supplied the Court with any\n\n 14\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 15 of 17\n\n\nindication that the Swiss court ever granted his request and modified the Divorce\n\nJudgment as he asked. So the modified custodial agreement is not cognizable as “a\n\ndecision of the court or the child protection authority.” Code Civil [CC] [Civil\n\nCode] Dec. 10, 1907, SR 210, RS 210, as amended, art. 301a. And as a result, it\n\ndoes not rise to the level of a “judicial or administrative decision” under the\n\nConvention and cannot amend the Divorce Judgment, which governs the\n\nsubstantive parental rights here.\n\n Finally, Pfeiffer argues that we should decide this case in line with the Third\n\nCircuit’s decision in Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006).4 But\n\nwe find Karkkainen to be materially distinguishable.\n\n There, the parents entered into a Stipulation in Custody that provided that\n\nthe mother “shall have primary physical custody of [the child], including the right\n\nof the child’s residence in Finland . . . .” Id. at 285. Though the Stipulation was\n\nsigned by a common pleas judge, it was never actually filed with the court. Thus,\n\nthe Third Circuit described it as “an informal custody agreement . . . , not a binding\n\ncourt order.” Id. at 293. The court also concluded that the parents’ shared\n\nintention concerning where the child would live changed after the parties entered\n\ninto the Stipulation but before the child was retained in the United States. Id. And\n\n 4\n Pfeiffer actually raises this argument under the intent aspect of the habitual-residence\ninquiry, not under the “rights of custody” analysis. We did not reach the intent issue under the\nhabitual-residence inquiry and as Pfeiffer has argued Karkkainen, he seems to suggest possible\nimplications for the “rights of custody” analysis as well, so we evaluate it here.\n 15\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 16 of 17\n\n\nsince the parents’ shared intention about the child’s habitual residence must be\n\nascertained as of the time of removal or retention, the court concluded, the\n\nStipulation “was no longer binding.” Id. Pfeiffer contends that Karkkainen\n\ndemonstrates that “an agreement by parents to allow for the relocation of the\n\nchildren can be amended informally by their actions.”\n\n The problem for Pfeiffer, though, is that Karkkainen concerns divining the\n\nparents’ shared intent for the child’s habitual residence—an issue of fact. But the\n\ninquiry into who possesses the right to determine the child’s place of residence is a\n\nquestion of law—or, at the very least, a mixed question of fact and law. And a\n\nparent’s formal expression of a change in her or his desire about a child’s place of\n\nresidence cannot, in and of itself, legally somehow modify a court order. For this\n\nreason, on this record, we do not find Karkkainen instructive on the question of\n\nascertaining which parent or parents enjoy the right to determine the child’s place\n\nof residence.\n\n In short, under the Divorce Agreement, Pfeiffer does not enjoy a ne exeat\n\nright as it pertains to Bachotet’s authority to move the children from Switzerland to\n\nthe United States. And since the Divorce Agreement is a court order that has not\n\nbeen modified, it constitutes Swiss law for purposes of ascertaining the parties’\n\nrights of custody to determine the children’s place of residence. We are therefore\n\nbound to apply its terms and affirm the district court’s conclusion that Pfeiffer has\n\n 16\n\f Case: 18-13918 Date Filed: 01/15/2019 Page: 17 of 17\n\n\nnot satisfied his burden to establish a prima facie case of wrongful removal under\n\nthe Hague Convention.\n\n III.\n\n For the foregoing reasons, we affirm the judgment of the district court\n\ndenying Pfeiffer’s petition for return of the children to Switzerland under the\n\nHague Convention.\n\n AFFIRMED.\n\n\n\n\n 17\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Marcellinus PFEIFFER, Petitioner-Appellant, v. Rachel BACHOTET, Respondent- Appellee.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-01-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-13918 Date Filed: 01/15/2019 Page: 1 of 17\\n\\n\\n [PUBLISH]\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 18-13918\\n Non-Argument Calendar\\n ________________________\\n\\n D.C. Docket No. 1:18-cv-03446-RWS\\n\\n\\n\\n\\nMARCELLINUS PFEIFFER,\\n\\n Petitioner-Appellant,\\n\\nversus\\n\\nRACHEL BACHOTET,\\n\\n Respondent- Appellee.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Northern District of Georgia\\n ________________________\\n\\n (January 15, 2019)\\n\\nBefore TJOFLAT, WILLIAM PRYOR, and ROSENBAUM, Circuit Judges.\\n\\nPER CURIAM:\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 2 of 17\\n\\n\\n This case arises under the Hague Convention on the Civil Aspects of\\n\\nInternational Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S.\\n\\n89, also publ’d at https://www.hcch.net/en/instruments/conventions/full-\\n\\ntext/?cid=24 (last visited Dec. 18, 2018). Plaintiff-Petitioner Marcellinus Pfeiffer,\\n\\na German citizen, seeks the return of his children N.A.R. and R.H.E. from the\\n\\nUnited States to Switzerland. His ex-wife, Respondent Rachel Bachotet, a French\\n\\ncitizen who moved with the children from Switzerland to Georgia in June 2018,\\n\\nopposes the children’s return. Following briefing and two hearings, the district\\n\\ncourt denied Pfeiffer’s petition. After careful consideration, we now affirm the\\n\\ndistrict court’s decision for the reasons we explain below.\\n\\n I.\\n\\n Pfeiffer and Bachotet were married in France in 2010. Two years later, in\\n\\n2012, they moved to Switzerland. Pfeiffer and Bachotet have two children:\\n\\nN.A.R., a nine-year-old daughter, and R.H.E., an eight-year-old son. Until June\\n\\n17, 2018, both children had lived continuously in Switzerland since 2012.\\n\\n In June 2017, Pfeiffer and Bachotet obtained a divorce when the District\\n\\nCourt of Meilen, under the Canton of Zurich, Switzerland, issued a Sentence and\\n\\nDecree of Divorce (the “Divorce Judgment”). Among other provisions, this\\n\\nDivorce Judgment provided for the two children to “remain under shared custody\\n\\nof both parents.” It further “require[d] both parents’ consent [to relocate the\\n\\n 2\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 3 of 17\\n\\n\\nchildren] if the new place of residence is located abroad or if relocation has some\\n\\nimpact on the exercise of parental custody or visitation rights of either parent.”\\n\\nNonetheless, section 3.2.a) of the Divorce Judgment expressly specified that\\n\\nPfeiffer “does not object to the mother’s taking residence abroad (US or France)\\n\\nat/after[1] the end of the school term 2016/2017.”\\n\\n Other parts of the Divorce Judgment also indicated that it anticipated\\n\\nBachotet would relocate with the children outside of Switzerland. Paragraph\\n\\n3.2.c)aa provided, “Until [Bachotet] relocates with the children abroad (see section\\n\\n[3.]2.a[)], last paragraph above), the children’s father is entitled and obliged to\\n\\nexercise his obligation of care towards the children as follows . . . .” Similarly,\\n\\nparagraph 3.2.c)bb stated, “As from relocation of [Bachotet] and the children\\n\\nabroad (see section [3.]2.a[)] last paragraph) the following visitation regime shall\\n\\nbe effective . . . . Once per year, [Bachotet] shall pay for travelling costs (round\\n\\ntrip), when the children visit their father. Any other visitation-related costs shall be\\n\\nborne by the father.”\\n\\n\\n\\n 1\\n Pfeiffer’s translation of the Divorce Judgment—the original version of which was in\\nGerman—uses the word “at,” while Bachotet’s translates the word as “after.” The original\\nGerman version states, in relevant part, “Der Vater erklart sich damit einverstanden, dass die\\nMutter den Wohneitz der Kinder nach Ende des laufenden Schuljahres 2016/2017 ins Ausland\\nveriegt (in die USA oder nach Frankreich).” Pfeiffer’s proposed translation does not indicate its\\nsource. Bachotet’s translation indicates that it is a “certified translation of a document in the\\nGerman language” by Hazel Schauss, “[c]ertified and [s]worn Public Translator.” Nonetheless,\\nour analysis does not depend on whether the correct translation is “at” or “after,” so we do not\\nchoose between the two versions.\\n 3\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 4 of 17\\n\\n\\n Until Bachotet relocated, however, the Divorce Judgment awarded Pfeiffer\\n\\nparenting time with the children every other weekend, with additional time for\\n\\nholidays and during the summer. In 2018, the guardian appointed to oversee the\\n\\ncustodial arrangement between the parties modified the parents’ custodial\\n\\nagreement so that Pfeiffer and Bachotet had equal time with the children. But\\n\\nwhile she entered a new parenting plan, under Swiss law, she lacked the authority\\n\\nto modify the Divorce Judgment. Therefore, the Divorce Judgment remained\\n\\nunchanged.\\n\\n Meanwhile, according to Bachotet’s counsel’s undisputed proffer, on June\\n\\n28, 2017, at the end of the children’s 2016-17 school term, Bachotet began the\\n\\nrelocation process by applying for a K-1 (fiancé) Visa for herself and K-2 Visas for\\n\\nthe children to emigrate from Switzerland to the United States. Bachotet first\\n\\nreceived notice that the United States had authorized the Visas on May 17, 2018.\\n\\nUnder the terms of the Visas, they were valid until July 6, 2018.\\n\\n On June 9, a letter from Pfeiffer dated June 7 was delivered to Bachotet. In\\n\\nthat letter, Pfeiffer wrote that he “revoke[d] [his] consent to [Bachotet’s] relocation\\n\\nwith [the] children . . . abroad, in the US or in France, as expressed in the [Divorce\\n\\nJudgment] in 2017.” That same afternoon, Bachotet booked plane tickets for\\n\\nherself and her children to the United States for June 17, 2018.\\n\\n\\n\\n\\n 4\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 5 of 17\\n\\n\\n On June 15, 2018, Pfeiffer sent a letter to the District Court of Meilen, which\\n\\nhad jurisdiction over the Divorce Judgment. In that letter, Pfeiffer stated that he\\n\\n“revoke[d] [his] consent to the relocation of [the] children . . . to the United States\\n\\nof America.” He requested that the court “immediately impose a travel ban . . .\\n\\nwithout consultation with . . . Bachotet, in order to keep her from leaving\\n\\n[Switzerland] with the children.” The record contains no subsequent order from\\n\\nthe Swiss court acting on Pfeiffer’s request.\\n\\n On about June 17, 2018, Bachotet left Switzerland with the children for the\\n\\nUnited States. The three currently reside in Marietta, Georgia, with Bachotet’s\\n\\nAmerican fiancé.\\n\\n A month after Bachotet left Switzerland with the children, on July 17, 2018,\\n\\nPfeiffer filed this litigation seeking return of the children to Switzerland under the\\n\\nHague Convention. The district court held a hearing on the merits of Pfeiffer’s\\n\\npetition on August 24, 2018. Following the hearing, on August 29, 2018, the\\n\\ndistrict court issued an order denying Pfeiffer’s petition. The court reasoned that\\n\\nPfeiffer had failed to satisfy his burden to show that Bachotet’s removal of the\\n\\nchildren from Switzerland violated Pfeiffer’s rights of custody, in light of the\\n\\nDivorce Judgment’s provision awarding Bachotet “the exclusive right to determine\\n\\nwhether the children would remain in Switzerland or move to the United States or\\n\\nFrance at the end of the 2016/2017 school year.” Doc. 31 at 7-8.\\n\\n 5\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 6 of 17\\n\\n\\n Pfeiffer now appeals.\\n\\n II.\\n\\n Whether the Convention requires the return of the children to Switzerland or\\n\\ntheir continued residence in the United States presents a mixed question of law and\\n\\nfact. See Ruiz v. Tenorio, 392 F.3d 1247, 1251 (11th Cir. 2004). We review the\\n\\ndistrict court’s findings of fact for clear error and review de novo its legal\\n\\ndeterminations and application of the law to the facts. Id.\\n\\n This matter also raises questions of foreign law, in addition to issues of\\n\\ntreaty interpretation and of construction of United States law. Rule 44.1, Fed. R.\\n\\nCiv. P., governs our review of questions of foreign law. See Fed. R. Civ. P. 44.1;\\n\\nOzaltin v. Ozaltin, 708 F.3d 355, 368 (2d Cir. 2013). Rule 44.1 provides,\\n\\n A party who intends to raise an issue about a foreign\\n country’s law must give notice by a pleading or other\\n writing. In determining foreign law, the court may\\n consider any relevant material or source, including\\n testimony, whether or not submitted by a party or\\n admissible under the Federal Rules of Evidence. The\\n court’s determination must be treated as a ruling on a\\n question of law.\\n\\nFed. R. Civ. P. 44.1. We follow the dictates of Rule 44.1.\\n\\n III.\\n\\n Among other functions, the Hague Convention on the Civil Aspects of\\n\\nInternational Child Abduction “establishes legal rights and procedures for the\\n\\nprompt return of children who have been wrongfully removed or retained.” 22\\n 6\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 7 of 17\\n\\n\\nU.S.C. § 9001(a)(4). The United States ratified the Convention, and Congress\\n\\nimplemented it through the International Child Abduction Remedies Act\\n\\n(“ICARA”), Lozano v. Montoya Alvarez, 572 U.S. 1, 6 (2014), now codified at 22\\n\\nU.S.C. §§ 9001 et seq. Notably, under the Convention and ICARA, courts are\\n\\nempowered “to determine only rights under the Convention and not the merits of\\n\\nany underlying child custody claims.” Baran v. Beaty, 526 F.3d 1340, 1344 (11th\\n\\nCir. 2008) (quoting 22 U.S.C. § 9001(b)(4)).\\n\\n In particular, ICARA requires that “[c]hildren who are wrongfully removed\\n\\n. . . be promptly returned unless one of the narrow exceptions set forth in the\\n\\nConvention applies.” 22 U.S.C. § 9001(a)(4). The removal or retention of a child\\n\\nin a state that is a signatory to the Convention is wrongful if\\n\\n a) it is in breach of rights of custody attributed to a\\n person . . . under the law of the State in which the child\\n was habitually resident immediately before the removal\\n or retention; and\\n\\n b) at the time of removal or retention those rights were\\n actually exercised . . . or would have been exercised but\\n for the removal or retention.\\n\\nConvention art. 3. See also Ruiz, 392 F.3d at 1251.\\n\\n The party seeking the child’s return must establish by a preponderance of the\\n\\nevidence that the child was wrongfully removed or retained. Calixto v. Lesmes,\\n\\nNo. 17-15364, ___ F.3d ___, 2018 WL 6257410, *2 (11th Cir. Nov. 30, 2018)\\n\\n(citing Chafin v. Chafin, 742 F.3d 934, 938 (11th Cir. 2013) and 22 U.S.C. §\\n 7\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 8 of 17\\n\\n\\n9003(e)(1)(A)). As relevant here, satisfying that burden requires the petitioner to\\n\\nshow that (1) the child was a habitual resident of another country at the time she\\n\\nwas removed to the United States; (2) the removal breached the petitioner’s\\n\\ncustody rights under the law of that other country; and (3) the petitioner was, in\\n\\nfact, exercising those custody rights when the child was removed. Id. (citations\\n\\nomitted).\\n\\n Here, as we explain below, Pfeiffer has established that the children’s\\n\\nhabitual residence at the time of removal was Switzerland. But the district court\\n\\nnonetheless correctly denied Pfeiffer’s petition because Pfeiffer has not\\n\\ndemonstrated that Bachotet’s removal of the children violated his custody rights\\n\\nunder Swiss law.\\n\\nA. The children’s habitual residence at the time of removal was Switzerland.\\n\\n We begin with the children’s habitual residence on June 17, 2018, the day\\n\\nBachotet removed them from Switzerland. Neither the Hague Convention nor\\n\\nICARA defines the term “habitual residency.” Id. So we construe the term’s\\n\\n“ordinary meaning as understood in the public law of nations.” Santovincenzo v.\\n\\nEgan, 284 U.S. 30, 40 (1931) (citation and internal quotation marks omitted). The\\n\\nHigh Court of Justice in the United Kingdom has noted that a habitual residence is\\n\\nestablished when “the purpose of living where one does has a sufficient degree of\\n\\ncontinuity to be properly described as settled.” In re Bates, No. CA 122.89 at 9-\\n\\n 8\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 9 of 17\\n\\n\\n10, High Court of Justice, Fam. Div’n Ct. Royal Court of Justice, United Kingdom\\n\\n(1989).\\n\\n In identifying when a child’s habitual residence has been changed, we have\\n\\noffered further insight into the meaning of “habitual residency.” We have set forth\\n\\ntwo requirements to alter a child’s habitual residence: (1) the parents must share a\\n\\n“settled intention” to leave the old habitual residence behind; and (2) an “actual\\n\\nchange in geography and the passage of a sufficient length of time for the child to\\n\\nhave become acclimatized” must occur. Ruiz, 392 F.3d at 1252-53. Both must be\\n\\npresent to change a child’s habitual residence.\\n\\n We conclude, based on the second requirement, that the children’s habitual\\n\\nresidence had not changed as of the date of the challenged removal. Therefore, we\\n\\nneed not consider the first requirement regarding the parents’ shared intention.\\n\\nHere, as of the time of the challenged removal, June 17, 2018, the children—then\\n\\nseven and nine years old—had lived continuously in Switzerland for six years.\\n\\nNothing in the record indicates that they had ever lived in—or even spent\\n\\nsignificant time in—the United States as of that date. Nor does the record suggest\\n\\nor do the parties argue that any other country could have served as the children’s\\n\\nhabitual residence as of June 17, 2018. And since acclimatization cannot take\\n\\nplace without the parties’ physical presence in a new country, the children’s\\n\\nhabitual residence as of the date of removal was Switzerland.\\n\\n 9\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 10 of 17\\n\\n\\nB. Bachotet’s removal of the children from Switzerland did not violate Pfeiffer’s\\ncustody rights under Swiss law.\\n\\n The Convention defines the terms “rights of custody” and “rights of access”\\n\\nas follows:\\n\\n Article 5: For the purposes of this Convention—\\n\\n a: “rights of custody” shall include rights relating to the\\n care of the person of the child and, in particular, the right\\n to determine the child’s place of residence;\\n\\n b: “rights of access” shall include the right to take a\\n child for a limited period of time to a place other than the\\n child’s habitual residence.\\n\\nConvention, art. 5. Perhaps a simpler way of describing “rights of access” is as\\n\\nmere “visitation rights.” See 22 U.S.C. § 9002(7). Rights of custody, on the other\\n\\nhand, are broader rights; as we have noted above and as Article 5(a) states, those\\n\\nrights include “rights relating to the care of the person of the child and, in\\n\\nparticular, the right to determine the child’s place of residence.” Convention art.\\n\\n5(a) (emphasis added). In resolving this petition for return of the children, we\\n\\nmust employ these definitions, as opposed to those of local law, common law, or\\n\\nany other source, since doing so “ensures international consistency in interpreting\\n\\nthe Convention.” Abbott v. Abbott, 560 U.S. 1, 12 (2010).\\n\\n We ascertain “the substance of parental rights” in any given case by\\n\\nconsulting the law of the country “in which the child was habitually resident\\n\\nimmediately before the removal[,] . . . or . . . a judicial or administrative decision,\\n 10\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 11 of 17\\n\\n\\nor . . . an agreement having legal effect under the law of that [country].” Ozaltin,\\n\\n708 F.3d at 367; Convention art. 3. But we evaluate whether those rights qualify\\n\\nas “rights of custody” under the Convention’s definition of the term. Ozaltin, 708\\n\\nF.3d at 367.\\n\\n Since the Convention treats rights of custody and rights of access differently,\\n\\nit is important to distinguish between the two. See id. at 13. When a removal or\\n\\nretention violates a petitioner’s rights of custody, the Convention authorizes the\\n\\nreturn of the child. See Convention art. 1. But it does not do so for a breach of\\n\\nrights of access. Abbott, 561 U.S. at 9. Rather, the Convention “requires\\n\\ncontracting states ‘to promote the peaceful enjoyment of access rights.’” Id. at 13\\n\\n(quoting Convention art. 21).\\n\\n With these considerations in mind, we explore the substance of parental\\n\\nrights under Swiss law. Article 133 of the Swiss Civil Code, Code Civil [CC]\\n\\n[Civil Code] Dec. 10, 1907, SR 210, RS 210, as amended, art. 133, endows courts\\n\\nwith the authority to “regulate[] parental rights and obligations in accordance with\\n\\nthe provisions on the legal effects of the parent-child relationship. . . . In particular\\n\\nit [has the power to] regulate[]: . . . residence . . . .” Under Swiss law, in cases like\\n\\nthis one, where the parents enjoy joint parental responsibility, either the consent of\\n\\nthe other parent or “a decision of the court or the child protection authority” is\\n\\nnecessary before one parent may establish a new place of residence outside\\n\\n 11\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 12 of 17\\n\\n\\nSwitzerland. Swiss Civil Code, Art. 301a, Code Civil [CC] [Civil Code] Dec. 10,\\n\\n1907, SR 210, RS 210, as amended, art. 301a. 2\\n\\n Here, the Divorce Judgment constituted a decision of the Swiss court. And\\n\\nthough Swiss law generally provides parents with a ne exeat right as it pertains to\\n\\nremoval of a child from Switzerland, 3 see Swiss Civil Code, Art. 301a, the Divorce\\n\\nJudgment here expressly empowered Bachotet to relocate with the children to\\n\\neither the United States or France “at [or possibly after] the end of the school term\\n\\n2016/2017.” Section 3.2.a); see also Section 3.2.c)aa (“Until [Bachotet] relocates\\n\\nwith the children abroad (see section [3.]2.a[)] . . . the children’s father is entitled\\n\\nand obliged to exercise his obligation of care towards the children as follows . . .\\n\\n.”) (emphasis added); Section 3.2.c)bb (“As from relocation of [Bachotet] and the\\n\\nchildren abroad (see section [3.]2.a[)] . . . the following visitation regime shall be\\n\\neffective . . . . Once per year, [Bachotet] shall pay for travelling costs (round trip),\\n\\nwhen the children visit their father. Any other visitation-related costs shall be\\n\\nborne by the father.”) (emphasis added). So by Swiss law, under the Divorce\\n\\nJudgment, Bachotet had the sole rights of custody as they pertained to determining\\n\\nwhether to move the children to the United States.\\n\\n\\n\\n\\n 2\\n English translations of these portions of the Swiss Civil Code are available at\\nhttps://www.admin.ch/opc/en/classified-compilation/19070042/index.html.\\n 3\\n A ne exeat right is “the authority to consent before the other parent may take the child to\\nanother country.” Abbott, 560 U.S. at 5.\\n 12\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 13 of 17\\n\\n\\n Pfeiffer does not contest this analysis, but he nonetheless asserts that events\\n\\ntranspiring after the court entered the Divorce Judgment revoked Bachotet’s\\n\\nauthority to remove the children from Switzerland. In support of this claim,\\n\\nPfeiffer urges three theories.\\n\\n First, Pfeiffer argues that Bachotet’s authority to remove the children was\\n\\ntime-dependent and automatically expired when Bachotet failed to move them to\\n\\nthe United States in June 2017. But even assuming that the Divorce Judgment is\\n\\ntechnically translated to mean “at the end of the 2016/2017 school term” rather\\n\\nthan “after the end of the 2016/2017 school term,” as Pfeiffer asserts, the record\\n\\nshows that Bachotet began taking steps immediately at the end of the 2016/2017\\n\\nschool term to move the children to the United States. It further indicates that\\n\\nBachotet began the relocation process the same month that the children’s\\n\\n2016/2017 school term ended—June 2017. And it reflects that Bachotet did not\\n\\nreceive notice that the children’s visas for relocation to the United States had been\\n\\napproved until May 17, 2018. Bachotet then promptly obtained plane tickets and\\n\\nmoved the children within a month of notification. Under these circumstances, we\\n\\ncannot conclude that Bachotet did not take steps to remove the children as soon as\\n\\npossible after the end of the 2016/2017 school term.\\n\\n Second, Pfeiffer contends that, following the court’s entry of the Divorce\\n\\nJudgment, he reestablished his rights of custody to determine the children’s place\\n\\n 13\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 14 of 17\\n\\n\\nof residence. Pfeiffer bases this claim on the modification to the custodial\\n\\nagreement that the guardian reached and the parents agreed to. But Pfeiffer has not\\n\\nshowed that the guardian’s modification of the custodial agreement cognizably\\n\\nrevoked the court’s order authorizing Bachotet to remove the children to the\\n\\nUnited States at the end of the 2016/2017 school term.\\n\\n Pfeiffer has not pointed to legal authority demonstrating that the guardian’s\\n\\namendment of the custodial agreement modified the Swiss Court’s Divorce\\n\\nJudgment. On the contrary, an August 21, 2018, letter from Pfeiffer’s Swiss\\n\\nattorney, which Pfeiffer filed with the district court, indicates his attorney’s view\\n\\nthat, at the time that the guardian modified the custodial agreement, only the Swiss\\n\\ncourt had the authority to legally amend the Divorce Judgment in accordance with\\n\\nthe changes to the custodial agreement.\\n\\n Nor has Pfeiffer showed that the Swiss court ever amended the Divorce\\n\\nJudgment to incorporate or otherwise recognize the modified custodial agreement,\\n\\neven though under Swiss law, the Swiss court retained jurisdiction to amend its\\n\\norders regarding custody. In fact, Pfeiffer’s June 15, 2018, letter to the Swiss court\\n\\nthat issued the Divorce Judgment suggests that Pfeiffer was aware of this problem.\\n\\nIn that letter, Pfeiffer requested amendment of the Divorce Judgment so that\\n\\nBachotet no longer had the sole rights of custody to determine whether to move the\\n\\nchildren to the United States. But Pfeiffer has not supplied the Court with any\\n\\n 14\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 15 of 17\\n\\n\\nindication that the Swiss court ever granted his request and modified the Divorce\\n\\nJudgment as he asked. So the modified custodial agreement is not cognizable as “a\\n\\ndecision of the court or the child protection authority.” Code Civil [CC] [Civil\\n\\nCode] Dec. 10, 1907, SR 210, RS 210, as amended, art. 301a. And as a result, it\\n\\ndoes not rise to the level of a “judicial or administrative decision” under the\\n\\nConvention and cannot amend the Divorce Judgment, which governs the\\n\\nsubstantive parental rights here.\\n\\n Finally, Pfeiffer argues that we should decide this case in line with the Third\\n\\nCircuit’s decision in Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006).4 But\\n\\nwe find Karkkainen to be materially distinguishable.\\n\\n There, the parents entered into a Stipulation in Custody that provided that\\n\\nthe mother “shall have primary physical custody of [the child], including the right\\n\\nof the child’s residence in Finland . . . .” Id. at 285. Though the Stipulation was\\n\\nsigned by a common pleas judge, it was never actually filed with the court. Thus,\\n\\nthe Third Circuit described it as “an informal custody agreement . . . , not a binding\\n\\ncourt order.” Id. at 293. The court also concluded that the parents’ shared\\n\\nintention concerning where the child would live changed after the parties entered\\n\\ninto the Stipulation but before the child was retained in the United States. Id. And\\n\\n 4\\n Pfeiffer actually raises this argument under the intent aspect of the habitual-residence\\ninquiry, not under the “rights of custody” analysis. We did not reach the intent issue under the\\nhabitual-residence inquiry and as Pfeiffer has argued Karkkainen, he seems to suggest possible\\nimplications for the “rights of custody” analysis as well, so we evaluate it here.\\n 15\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 16 of 17\\n\\n\\nsince the parents’ shared intention about the child’s habitual residence must be\\n\\nascertained as of the time of removal or retention, the court concluded, the\\n\\nStipulation “was no longer binding.” Id. Pfeiffer contends that Karkkainen\\n\\ndemonstrates that “an agreement by parents to allow for the relocation of the\\n\\nchildren can be amended informally by their actions.”\\n\\n The problem for Pfeiffer, though, is that Karkkainen concerns divining the\\n\\nparents’ shared intent for the child’s habitual residence—an issue of fact. But the\\n\\ninquiry into who possesses the right to determine the child’s place of residence is a\\n\\nquestion of law—or, at the very least, a mixed question of fact and law. And a\\n\\nparent’s formal expression of a change in her or his desire about a child’s place of\\n\\nresidence cannot, in and of itself, legally somehow modify a court order. For this\\n\\nreason, on this record, we do not find Karkkainen instructive on the question of\\n\\nascertaining which parent or parents enjoy the right to determine the child’s place\\n\\nof residence.\\n\\n In short, under the Divorce Agreement, Pfeiffer does not enjoy a ne exeat\\n\\nright as it pertains to Bachotet’s authority to move the children from Switzerland to\\n\\nthe United States. And since the Divorce Agreement is a court order that has not\\n\\nbeen modified, it constitutes Swiss law for purposes of ascertaining the parties’\\n\\nrights of custody to determine the children’s place of residence. We are therefore\\n\\nbound to apply its terms and affirm the district court’s conclusion that Pfeiffer has\\n\\n 16\\n\\f Case: 18-13918 Date Filed: 01/15/2019 Page: 17 of 17\\n\\n\\nnot satisfied his burden to establish a prima facie case of wrongful removal under\\n\\nthe Hague Convention.\\n\\n III.\\n\\n For the foregoing reasons, we affirm the judgment of the district court\\n\\ndenying Pfeiffer’s petition for return of the children to Switzerland under the\\n\\nHague Convention.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 17\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":399,"cells":{"id":{"kind":"number","value":4582014,"string":"4,582,014"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. MARITIME LIFE CARIBBEAN LIMITED, Interested Party-Appellant, Raul J. Gutierrez, Defendant."},"name_abbreviation":{"kind":"string","value":"United States v. Maritime Life Caribbean Limited"},"decision_date":{"kind":"string","value":"2019-01-16"},"docket_number":{"kind":"string","value":"17-10889"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Pryor, Martin, Wood\", \"parties\": \"\", \"opinions\": [{\"author\": \"WILLIAM PRYOR, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-10889 Date Filed: 01/16/2019 Page: 1 of 16\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-10889\\n ________________________\\n\\n D.C. Docket No. 1:05-cr-20859-PCH\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff-Appellee,\\n versus\\n\\nMARITIME LIFE CARIBBEAN LIMITED,\\n\\n Interested Party-Appellant,\\n\\nRAUL J. GUTIERREZ,\\n\\n Defendant.\\n\\n\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Florida\\n _______________________\\n\\n (January 16, 2019)\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 2 of 16\\n\\n\\nBefore WILLIAM PRYOR and MARTIN, Circuit Judges, and WOOD, *\\n\\nDistrict Judge.\\n\\nWILLIAM PRYOR, Circuit Judge:\\n\\n This appeal involves two questions about an ancillary third-party forfeiture\\n\\nproceeding in which Maritime Life Caribbean asserted that it was given a security\\n\\ninterest in the forfeited property: whether the district court erred in requiring\\n\\nMaritime Life to prove the authenticity of the collateral assignment that allegedly\\n\\ngranted it a security interest in the forfeited property by a preponderance of the\\n\\nevidence, and whether the district court erred in permitting the Republic of\\n\\nTrinidad and Tobago to intervene in the forfeiture proceeding even though it had\\n\\nno legal interest in the property. We conclude that, although both rulings were in\\n\\nerror, neither error warrants reversal. We affirm.\\n\\n I. BACKGROUND\\n\\n Raul Gutierrez pleaded guilty in 2006 to a variety of wire- and bank-fraud\\n\\ncharges arising from a bid-rigging scheme involving the construction of an airport\\n\\nin Trinidad and Tobago. After sentencing, the district court entered a preliminary\\n\\norder of forfeiture against him in the amount of $22,556,100, representing the\\n\\nproceeds of his criminal activity. The forfeiture included Gutierrez’s interest in a\\n\\npiece of real property located at 12850 Red Road in Coral Cables, Florida, the title\\n\\n\\n*\\n The Honorable Lisa Godbey Wood, United States District Judge for the Southern District of\\nGeorgia, sitting by designation.\\n\\n\\n 2\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 3 of 16\\n\\n\\nfor which was held by Inversiones Rapidven, S.A. Although the plea agreement\\n\\nexhaustively listed Gutierrez’s assets and liabilities, it did not mention any\\n\\nencumbrance on the Red Road property.\\n\\n The Republic of Trinidad and Tobago moved to intervene in the forfeiture\\n\\nproceeding under Federal Rule of Criminal Procedure 32.2. Trinidad asserted that\\n\\nit was a victim of the bid-rigging conspiracy and that it had an interest in any\\n\\nforfeiture proceeds that might result from the sale of the Red Road property, but it\\n\\ndid not assert any legal interest in the property itself. The district court expressed\\n\\nskepticism about the propriety of permitting Trinidad to intervene and\\n\\nacknowledged that it was “not sure if [Trinidad has] standing” under the statute\\n\\ngoverning criminal forfeitures, 21 U.S.C. § 853. Despite these misgivings, the\\n\\ndistrict court granted Trinidad’s motion to intervene. It directed Trinidad and the\\n\\ngovernment to “form a committee on the government[/]victim side and decide who\\n\\nwill be speaking for that group.”\\n\\n At a later status conference, the government expressed concern over a\\n\\n“potential conflict” between the parties’ interests and argued that victims like\\n\\nTrinidad do not “have standing in a forfeiture proceeding.” The district court\\n\\ndisregarded this concern on the ground that the government was “going to get a lot\\n\\nof cooperation from the lawyers for [Trinidad]” and Trinidad probably would end\\n\\nup “carrying the laboring oar . . . from this point forward.” In the district court’s\\n\\n\\n\\n 3\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 4 of 16\\n\\n\\nview, Trinidad’s intervention was permissible because it was the party who was\\n\\n“going to benefit if the government wins on the forfeiture.”\\n\\n In 2010, the district court instructed the government to issue a Notice of\\n\\nCriminal Forfeiture addressed to Steve Ferguson, the former chief executive officer\\n\\nof Maritime Life. Ferguson and Gutierrez were longtime business associates and\\n\\nfriends, and both were implicated in the criminal charges underlying the forfeiture\\n\\nproceeding. Maritime responded to the notice by filing a third-party claim asserting\\n\\nan interest in the Red Road property under the criminal-forfeiture statute, 21\\n\\nU.S.C. § 853(n), and Rule 32.2(c). To support its claim, Maritime produced an\\n\\nalleged collateral assignment that purported to memorialize a transaction in which\\n\\nGutierrez granted a security interest in the Red Road property to Maritime as\\n\\ncollateral for a $2 million loan to Keystone Property Developers, Ltd., Gutierrez’s\\n\\nconstruction company. The alleged assignment is dated July 24, 2001 and was\\n\\nsigned by Gutierrez in his capacity as president of Calmaquip Engineering\\n\\nCorporation, but it was never recorded.\\n\\n The government and Trinidad opposed Maritime’s claim. The parties then\\n\\nengaged in protracted discovery in which Trinidad played a significant role,\\n\\nleading 14 depositions on behalf of the government. Maritime objected to\\n\\nTrinidad’s participation in the litigation, but the district court denied its motion.\\n\\nThe district court acknowledged that Trinidad “does not have a direct claim under\\n\\n\\n\\n 4\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 5 of 16\\n\\n\\n[section] 853 or under the forfeiture claim” but permitted Trinidad to proceed, “not\\n\\nin [its] own rights, but . . . to do the work on behalf of the government.”\\n\\n After discovery, Trinidad and the government jointly moved for summary\\n\\njudgment, but the district court denied that motion. Instead, it sua sponte decided\\n\\nto hold a bifurcated trial with an initial phase focused solely on the question\\n\\nwhether “to admit the collateral assignment as being genuine and authentic” under\\n\\nFederal Rule of Evidence 901. The second phase was to address the merits of\\n\\nMaritime’s interest in the Red Road property. The district court explained that the\\n\\nquestion of authenticity was “a nice clean issue” that, if resolved against Maritime,\\n\\nwould obviate the need to resolve the complicated dispute about the legal effect of\\n\\nan unrecorded assignment of a security interest in real property for which\\n\\nGutierrez, the party who allegedly conveyed the assignment, did not hold title.\\n\\nMaritime objected on the ground that the authenticity issue should be consolidated\\n\\nwith the merits issues, but it later conceded that an adverse ruling on authenticity\\n\\nwould make the “other issues . . . go away.”\\n\\n At the hearing for the first phase of trial, Maritime presented three witnesses:\\n\\nLesley Alfonso, the Maritime director who allegedly discovered the collateral\\n\\nassignment; Frank Norwitch, a certified document examiner who reviewed the\\n\\ncollateral assignment; and Raul Gutierrez, who allegedly signed the assignment.\\n\\nThe government presented no live witnesses. Alfonso testified that in early 2010,\\n\\n\\n\\n 5\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 6 of 16\\n\\n\\nAndrew Ferguson, Maritime’s chief executive officer and the son of Steve\\n\\nFerguson, asked her to search for any documents related to the Red Road property.\\n\\nShe asserted that she discovered the assignment in the files of a deceased Maritime\\n\\nexecutive who had managed the loan transaction with Gutierrez. Alfonso also\\n\\ntestified that she returned to the storage room to ensure that there were no other\\n\\ndocuments responsive to the description she was given. Cross-examination by the\\n\\ngovernment and questioning by the district court made clear that this testimony\\n\\nconflicted with Alfonso’s earlier deposition testimony, in which she agreed that\\n\\nshe did not have “occasion to go back into the storage room and look at the folder\\n\\nor anything else that was around that document.”\\n\\n Norwitch testified as an expert after the government stipulated to his\\n\\nqualifications. He testified that he examined the watermark and the ink used in\\n\\nboth the typed and handwritten portions of the collateral assignment and concluded\\n\\nthat there was “no evidence that this document was anything other than what it is\\n\\npurported to be.” But Norwitch explained that the ink used in the document has\\n\\nbeen in commercial use for decades and that he could not determine “when [the]\\n\\ndocument was signed.” And Gutierrez testified that he executed the collateral\\n\\nassignment on July 24, 2001, after Maritime requested additional collateral. He\\n\\nadmitted that he failed to list the assignment in his presentence investigation report\\n\\nand testified that he never thought to record the multi-million-dollar transaction.\\n\\n\\n\\n 6\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 7 of 16\\n\\n\\nGutierrez also acknowledged that he had been convicted of crimes of fraud and\\n\\nthat he had falsified his community-service hours after being released from prison.\\n\\n After the hearing for the first phase of trial, the district court ruled that\\n\\nMaritime had failed to carry its burden of proving the authenticity of the collateral\\n\\nassignment “by the greater weight of the evidence.” The court determined that\\n\\ncircumstantial evidence and unexplained defects present on the face of the\\n\\ndocument undermined the inference that the assignment was authentic. It also\\n\\ndetermined that the expert testimony was inconclusive, that Alfonso and Gutierrez\\n\\nwere not credible, and that virtually no evidence corroborated the authenticity of\\n\\nthe assignment. Having ruled that the collateral assignment was inauthentic, the\\n\\ndistrict court concluded that it was unnecessary to proceed to the second phase of\\n\\ntrial and denied Maritime’s claim.\\n\\n II. STANDARD OF REVIEW\\n\\n “We review a district court’s legal conclusions regarding third-party claims\\n\\nto criminally forfeited property de novo and its factual findings for clear error.”\\n\\nUnited States v. Marion, 562 F.3d 1330, 1335 (11th Cir. 2009).\\n\\n III. DISCUSSION\\n\\n We divide our discussion in two parts. First, we explain that although the\\n\\ndistrict court applied the wrong standard when it assessed the authenticity of the\\n\\nalleged collateral assignment, the error was harmless. Second, we explain that the\\n\\n\\n\\n 7\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 8 of 16\\n\\n\\ndistrict court erred by permitting Trinidad to intervene, but this error too does not\\n\\nwarrant reversal.\\n\\n A. The District Court Committed Harmless Error in Ruling that the\\n Collateral Assignment Was Inauthentic.\\n\\n The district court ruled that the “burden of proof” was “on Maritime to prove\\n\\nby the greater weight of the evidence that the collateral assignment” is “an\\n\\nauthentic document,” but this ruling was in error. Even so, Maritime has suffered\\n\\nno prejudice.\\n\\n A two-step process governs the determination of whether a document is\\n\\nauthentic. The district court must first make a preliminary assessment of\\n\\nauthenticity under Rule 901, which “requires a proponent to present ‘sufficient\\n\\nevidence to make out a prima facie case that the proffered evidence is what it\\n\\npurports to be.’” United States v. Lebowitz, 676 F.3d 1000, 1009 (11th Cir. 2012)\\n\\n(quoting United States v. Belfast, 611 F.3d 783, 819 (11th Cir. 2010)). If the\\n\\nproponent satisfies this “prima facie burden,” the inquiry proceeds to a second\\n\\nstep, in which “the evidence may be admitted, and the ultimate question of\\n\\nauthenticity is then decided by the [factfinder].” Id.; see also In re Int’l Mgmt.\\n\\nAssocs., LLC, 781 F.3d 1262, 1267 (11th Cir. 2015) (“Once [a] prima facie\\n\\nshowing of authenticity [is] made, the ultimate question of the authenticity of the\\n\\ndocuments [is] left to the factfinder.”).\\n\\n\\n\\n\\n 8\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 9 of 16\\n\\n\\n The first phase of the bifurcated trial framework adopted by the district court\\n\\nwas intended to address only the preliminary question of authenticity. Under the\\n\\ntwo-step process contemplated by Rule 901, Maritime bore the burden of\\n\\nestablishing a prima facie case of authenticity at the first stage. Only at the second\\n\\nstep would “the trier of fact . . . appraise whether the proffered evidence is in fact\\n\\nwhat it purports to be.” United States v. Caldwell, 776 F.2d 989, 1002 (11th Cir.\\n\\n1985).\\n\\n By requiring Maritime to prove authenticity by “the greater weight of the\\n\\nevidence,” the district court compressed the two steps of the inquiry under Rule\\n\\n901 into one and conflated the issue of authenticity with the issue of entitlement to\\n\\nthe proceeds of the sale of the Red Road property, but this technical error need not\\n\\nwarrant reversal. Federal Rule of Civil Procedure 61 permits reversal based on a\\n\\ntrial error “only where the error has caused substantial prejudice to the affected\\n\\nparty (or, stated somewhat differently, affected the party's substantial rights or\\n\\nresulted in substantial injustice).” Peat, Inc. v. Vanguard Research, Inc., 378 F.3d\\n\\n1154, 1162 (11th Cir. 2004) (internal quotation marks omitted). The error by the\\n\\ndistrict court prejudiced Maritime only if there is a “reasonable likelihood that the\\n\\noutcome would have been different” if the district court had ruled that Maritime\\n\\nsatisfied its burden to prove a prima facie case of authenticity before proceeding to\\n\\n\\n\\n\\n 9\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 10 of 16\\n\\n\\ndetermine whether Maritime had an interest in the Red Road property. United\\n\\nStates v. Jeri, 869 F.3d 1247, 1262 (11th Cir. 2017).\\n\\n Maritime suffered no prejudice. If the district court had followed the process\\n\\ncontemplated by Rule 901, it would have answered the ultimate question of\\n\\nauthenticity in the same way; the outcome of the trial would not have differed.\\n\\n The first phase of the trial featured all of the evidence relevant to the\\n\\nquestion of authenticity. Maritime was on notice that the district court would apply\\n\\na preponderance standard in determining whether the assignment was authentic\\n\\nand had every incentive to produce all relevant evidence. The second phase would\\n\\nhave been a bench trial, see 21 U.S.C. § 853(n)(2), so the district court inevitably\\n\\nwould have reached the same answer to the “ultimate question of authenticity”\\n\\nwhen it acted as the finder of fact. Lebowitz, 676 F.3d at 1009.\\n\\n The district court was entitled to find that the assignment was not authentic\\n\\nunder the preponderance standard applicable at the second step of the inquiry\\n\\nunder Rule 901, and Maritime’s claim was bound to fail if the assignment was\\n\\ninauthentic. Maritime never asserted any other potential source of an interest in the\\n\\nRed Road property, and its trial counsel even conceded that it “only has a claim if\\n\\nit has an assignment.” In other words, Maritime’s claim stood or fell with the\\n\\nauthenticity of the collateral assignment.\\n\\n\\n\\n\\n 10\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 11 of 16\\n\\n\\n The collateral assignment was suspect on its face. It was neither witnessed\\n\\nnor notarized, even though Raul Gutierrez admitted that his secretary was a notary.\\n\\nThe document does not so much as mention the legal titleholder of the Red Road\\n\\nproperty, Inversiones Rapidven, and contains no legal description of the property.\\n\\nThe document was printed on Calmaquip letterhead, even though Lesley Alfonso,\\n\\na Maritime director, testified that it was the practice of Maritime to prepare its own\\n\\nloan documents. The assignment was purportedly created to secure a limited\\n\\nguarantee agreement in which Maritime lent $2 million to Keystone Construction.\\n\\nThe assignment states that the limited guaranty agreement was attached to it, but\\n\\nAlfonso testified that nothing was attached to the assignment when she allegedly\\n\\nfound it. Maritime’s own expert concluded that there was no evidence suggesting\\n\\nthat anything had ever been attached to the assignment. And the assignment was\\n\\nnever recorded—an astonishing oversight in a multi-million-dollar transaction.\\n\\n Circumstantial evidence also supported the finding that the assignment was\\n\\ninauthentic. The limited guaranty agreement makes no mention of the collateral\\n\\nassignment. And as the district court explained, there was “not a single document”\\n\\nthat “referenced the collateral assignment . . . before or after” the assignment was\\n\\nallegedly executed, other than a letter that Gutierrez purportedly sent to Richard\\n\\nLacle, his associate at Inversiones Rapidven. This letter lacked any indicia of\\n\\nauthenticity, such as a letterhead, physical or email address, or method of\\n\\n\\n\\n 11\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 12 of 16\\n\\n\\ntransmission. And Lacle denied ever receiving the letter and suggested that it was\\n\\nfabricated. And finally, Gutierrez listed the Red Road property as an\\n\\nunencumbered asset in his presentence investigation report and failed to list the\\n\\ncollateral assignment as a debt.\\n\\n Based on this evidence, the district court was entitled to infer that there was\\n\\na post hoc plot between Gutierrez and Maritime to spare the Red Road property\\n\\nfrom forfeiture through a fabricated assignment of an interest to Maritime. As we\\n\\nhave explained, “[a] district court has discretion to determine authenticity, and that\\n\\ndetermination should not be disturbed on appeal absent a showing that there is no\\n\\ncompetent evidence in the record to support it.” United States v. Siddiqui, 235 F.3d\\n\\n1318, 1322 (11th Cir. 2000). Even if we were to assume that Gutierrez’s signature\\n\\non the assignment is genuine, it is entirely possible that he signed shortly before he\\n\\nwent to prison in an effort to shield his property from forfeiture. Ample evidence\\n\\nestablished the existence of a close relationship between Gutierrez and the officers\\n\\nof Maritime. We reject Maritime’s assertion that Gutierrez could not possibly have\\n\\nanticipated that the government would seek forfeiture of his property. We expect\\n\\nthat a person who knows he is under investigation in a case of complex financial\\n\\nfraud could have foreseen the impending forfeiture.\\n\\n\\n\\n\\n 12\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 13 of 16\\n\\n\\n Ample evidence supports the finding by the district court on the ultimate\\n\\nquestion of authenticity. And that finding controlled whether Maritime had an\\n\\ninterest in the Red Road property. So no prejudicial error occurred.\\n\\n B. Trinidad’s Intervention Does Not Merit Reversal.\\n\\n Maritime also argues, and we agree, that the district court erred in\\n\\npermitting Trinidad, a foreign sovereign, to intervene in the ancillary\\n\\nproceeding to litigate on behalf of the United States. To represent the United\\n\\nStates, an attorney must be either a United States Attorney, an assistant United\\n\\nStates Attorney, or a special attorney. See 28 U.S.C. § 541(a) (creating\\n\\nprocedures for appointing a United States Attorney for each judicial district); id.\\n\\n§ 542(a) (creating procedures for appointing assistant United States Attorneys);\\n\\nid. § 543(a) (creating procedures for appointing special attorneys to assist\\n\\nUnited States Attorneys). And every attorney representing the United States\\n\\nmust take an oath of office. See id. § 544 (requiring United States Attorneys,\\n\\nassistant United States Attorneys, and specially appointed attorneys to take an\\n\\noath to faithfully execute their duties). Trinidad was not specially appointed to\\n\\nlitigate on behalf of the United States and took no oath of office.\\n\\n Nor did Trinidad have standing to intervene to defend its own interests.\\n\\nCongress has created one—and only one—means for interested third-parties to\\n\\nparticipate in a criminal-forfeiture proceeding: asserting a “legal right, title, or\\n\\n\\n\\n 13\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 14 of 16\\n\\n\\ninterest” sufficient for standing in an ancillary proceeding, 21 U.S.C. § 853(n).\\n\\nSection 853(k) of the statute governing criminal forfeitures provides that\\n\\n“[e]xcept as provided in subsection (n), no party claiming an interest in property\\n\\nsubject to forfeiture under this section” may “intervene in a trial or appeal of a\\n\\ncriminal case involving the forfeiture of such property under this section.” Id.\\n\\n§ 853(k). As we have explained, “[a]n ancillary proceeding constitutes the sole\\n\\nmeans by which a third-party claimant can establish entitlement to return of\\n\\nforfeited property.” United States v. Davenport, 668 F.3d 1316, 1320 (11th Cir.\\n\\n2012). Trinidad made no attempt to intervene under section 853(n) and did not\\n\\nassert any “legal right, title, or interest” in the Red Road property, 21 U.S.C.\\n\\n§ 853(n).\\n\\n Although there was no legal basis for Trinidad’s intervention, this error\\n\\ntoo does not warrant reversal. Maritime makes two arguments about prejudice,\\n\\nbut neither is persuasive.\\n\\n First, Maritime argues that Trinidad’s participation was prejudicial\\n\\nbecause the district court relied on deposition testimony elicited by Trinidad in\\n\\nfinding a material inconsistency in the testimony of Alfonso. But the bare fact\\n\\nthat the district court relied in part on evidence generated by Trinidad to\\n\\ndiscredit Alfonso’s testimony does not prove prejudicial error. As the district\\n\\ncourt stated, its ruling against Maritime did not depend on its rejection of\\n\\n\\n\\n 14\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 15 of 16\\n\\n\\nAlfonso’s testimony. The district court concluded that “even if” Alfonso “were\\n\\ncredible,” it was “just as likely” that the collateral assignment “could have been\\n\\nplaced there by anybody, and then she was sent . . . on her merry way to find\\n\\nthat document.” The district court was entitled to credit this alternative\\n\\nexplanation of the discovery of the collateral assignment in the light of the\\n\\nnumerous deficiencies in the document itself and the surrounding circumstantial\\n\\nevidence that it was not genuine.\\n\\n The district court also had another, independent ground for discounting\\n\\nAlfonso’s testimony: that she was not “an unbiased witness.” Alfonso is a\\n\\nformer employee and current director of Maritime. She had an obvious\\n\\nincentive to tailor her testimony to support Maritime’s interests. And regardless\\n\\nof whether we would have regarded this incentive as sufficient to discredit\\n\\nAlfonso’s testimony in the exercise of our independent judgment, the credibility\\n\\ndetermination by the district court is binding on us. As we have explained,\\n\\n“[t]he credibility of a witness is in the province of the factfinder,” and we “will\\n\\nnot ordinarily review the factfinder’s determination of credibility.” United\\n\\nStates v. Copeland, 20 F.3d 412, 413 (11th Cir. 1994).\\n\\n Second, Maritime argues, based on Young v. United States ex rel. Vuitton\\n\\net Fils S.A., 481 U.S. 787 (1987), that permitting a third party to litigate on\\n\\nbehalf of the United States in an ancillary forfeiture proceeding is structural\\n\\n\\n\\n 15\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 16 of 16\\n\\n\\nerror, but this argument is a nonstarter. In Young, a plurality of the Supreme\\n\\nCourt concluded that the “appointment of an interested prosecutor” in a\\n\\ncriminal contempt proceeding is a structural error. Id. at 810. This rule does not\\n\\napply to an ancillary proceeding conducted under section 853(n) because such a\\n\\nproceeding is civil in nature. See, e.g., United States v. Douglas, 55 F.3d 584,\\n\\n586 (11th Cir. 1995) (“Congress therefore viewed a [section] 853(n) hearing as\\n\\na species of an ‘action at law or equity’—a substitute for separate civil litigation\\n\\nagainst the government.”); United States v. Gilbert, 244 F.3d 888, 907 (11th\\n\\nCir. 2001), superseded by rule on other grounds as recognized in United States\\n\\nv. Marion, 562 F.3d 1330 (11th Cir. 2009) (expanding Douglas to other kinds\\n\\nof forfeitures). Indeed, if there were a constitutional prohibition on interested\\n\\nprivate parties representing the United States in civil actions, the validity of\\n\\nstatutes such as the False Claims Act, 31 U.S.C. § 3730, would be doubtful.\\n\\n Trinidad’s intervention did not affect Maritime’s “substantial rights.”\\n\\nFed. R. Civ. P. 61. Although the district court erred in permitting a foreign\\n\\nsovereign with no interest of its own to litigate on behalf of the United States,\\n\\nthis error does not require reversal of the dismissal of Maritime’s claim.\\n\\n IV. CONCLUSION\\n\\n We AFFIRM the judgment in favor of the United States.\\n\\n\\n\\n\\n 16\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4359267/\", \"author_raw\": \"WILLIAM PRYOR, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"PRYOR"},"judge2":{"kind":"string","value":"MARTIN"},"judge3":{"kind":"string","value":"WOOD"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4582014/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":1,"string":"1"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. MARITIME LIFE CARIBBEAN LIMITED, Interested Party-Appellant, Raul J. Gutierrez, Defendant.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-01-16\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-10889 Date Filed: 01/16/2019 Page: 1 of 16\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-10889\n ________________________\n\n D.C. Docket No. 1:05-cr-20859-PCH\n\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff-Appellee,\n versus\n\nMARITIME LIFE CARIBBEAN LIMITED,\n\n Interested Party-Appellant,\n\nRAUL J. GUTIERREZ,\n\n Defendant.\n\n\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Florida\n _______________________\n\n (January 16, 2019)\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 2 of 16\n\n\nBefore WILLIAM PRYOR and MARTIN, Circuit Judges, and WOOD, *\n\nDistrict Judge.\n\nWILLIAM PRYOR, Circuit Judge:\n\n This appeal involves two questions about an ancillary third-party forfeiture\n\nproceeding in which Maritime Life Caribbean asserted that it was given a security\n\ninterest in the forfeited property: whether the district court erred in requiring\n\nMaritime Life to prove the authenticity of the collateral assignment that allegedly\n\ngranted it a security interest in the forfeited property by a preponderance of the\n\nevidence, and whether the district court erred in permitting the Republic of\n\nTrinidad and Tobago to intervene in the forfeiture proceeding even though it had\n\nno legal interest in the property. We conclude that, although both rulings were in\n\nerror, neither error warrants reversal. We affirm.\n\n I. BACKGROUND\n\n Raul Gutierrez pleaded guilty in 2006 to a variety of wire- and bank-fraud\n\ncharges arising from a bid-rigging scheme involving the construction of an airport\n\nin Trinidad and Tobago. After sentencing, the district court entered a preliminary\n\norder of forfeiture against him in the amount of $22,556,100, representing the\n\nproceeds of his criminal activity. The forfeiture included Gutierrez’s interest in a\n\npiece of real property located at 12850 Red Road in Coral Cables, Florida, the title\n\n\n*\n The Honorable Lisa Godbey Wood, United States District Judge for the Southern District of\nGeorgia, sitting by designation.\n\n\n 2\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 3 of 16\n\n\nfor which was held by Inversiones Rapidven, S.A. Although the plea agreement\n\nexhaustively listed Gutierrez’s assets and liabilities, it did not mention any\n\nencumbrance on the Red Road property.\n\n The Republic of Trinidad and Tobago moved to intervene in the forfeiture\n\nproceeding under Federal Rule of Criminal Procedure 32.2. Trinidad asserted that\n\nit was a victim of the bid-rigging conspiracy and that it had an interest in any\n\nforfeiture proceeds that might result from the sale of the Red Road property, but it\n\ndid not assert any legal interest in the property itself. The district court expressed\n\nskepticism about the propriety of permitting Trinidad to intervene and\n\nacknowledged that it was “not sure if [Trinidad has] standing” under the statute\n\ngoverning criminal forfeitures, 21 U.S.C. § 853. Despite these misgivings, the\n\ndistrict court granted Trinidad’s motion to intervene. It directed Trinidad and the\n\ngovernment to “form a committee on the government[/]victim side and decide who\n\nwill be speaking for that group.”\n\n At a later status conference, the government expressed concern over a\n\n“potential conflict” between the parties’ interests and argued that victims like\n\nTrinidad do not “have standing in a forfeiture proceeding.” The district court\n\ndisregarded this concern on the ground that the government was “going to get a lot\n\nof cooperation from the lawyers for [Trinidad]” and Trinidad probably would end\n\nup “carrying the laboring oar . . . from this point forward.” In the district court’s\n\n\n\n 3\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 4 of 16\n\n\nview, Trinidad’s intervention was permissible because it was the party who was\n\n“going to benefit if the government wins on the forfeiture.”\n\n In 2010, the district court instructed the government to issue a Notice of\n\nCriminal Forfeiture addressed to Steve Ferguson, the former chief executive officer\n\nof Maritime Life. Ferguson and Gutierrez were longtime business associates and\n\nfriends, and both were implicated in the criminal charges underlying the forfeiture\n\nproceeding. Maritime responded to the notice by filing a third-party claim asserting\n\nan interest in the Red Road property under the criminal-forfeiture statute, 21\n\nU.S.C. § 853(n), and Rule 32.2(c). To support its claim, Maritime produced an\n\nalleged collateral assignment that purported to memorialize a transaction in which\n\nGutierrez granted a security interest in the Red Road property to Maritime as\n\ncollateral for a $2 million loan to Keystone Property Developers, Ltd., Gutierrez’s\n\nconstruction company. The alleged assignment is dated July 24, 2001 and was\n\nsigned by Gutierrez in his capacity as president of Calmaquip Engineering\n\nCorporation, but it was never recorded.\n\n The government and Trinidad opposed Maritime’s claim. The parties then\n\nengaged in protracted discovery in which Trinidad played a significant role,\n\nleading 14 depositions on behalf of the government. Maritime objected to\n\nTrinidad’s participation in the litigation, but the district court denied its motion.\n\nThe district court acknowledged that Trinidad “does not have a direct claim under\n\n\n\n 4\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 5 of 16\n\n\n[section] 853 or under the forfeiture claim” but permitted Trinidad to proceed, “not\n\nin [its] own rights, but . . . to do the work on behalf of the government.”\n\n After discovery, Trinidad and the government jointly moved for summary\n\njudgment, but the district court denied that motion. Instead, it sua sponte decided\n\nto hold a bifurcated trial with an initial phase focused solely on the question\n\nwhether “to admit the collateral assignment as being genuine and authentic” under\n\nFederal Rule of Evidence 901. The second phase was to address the merits of\n\nMaritime’s interest in the Red Road property. The district court explained that the\n\nquestion of authenticity was “a nice clean issue” that, if resolved against Maritime,\n\nwould obviate the need to resolve the complicated dispute about the legal effect of\n\nan unrecorded assignment of a security interest in real property for which\n\nGutierrez, the party who allegedly conveyed the assignment, did not hold title.\n\nMaritime objected on the ground that the authenticity issue should be consolidated\n\nwith the merits issues, but it later conceded that an adverse ruling on authenticity\n\nwould make the “other issues . . . go away.”\n\n At the hearing for the first phase of trial, Maritime presented three witnesses:\n\nLesley Alfonso, the Maritime director who allegedly discovered the collateral\n\nassignment; Frank Norwitch, a certified document examiner who reviewed the\n\ncollateral assignment; and Raul Gutierrez, who allegedly signed the assignment.\n\nThe government presented no live witnesses. Alfonso testified that in early 2010,\n\n\n\n 5\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 6 of 16\n\n\nAndrew Ferguson, Maritime’s chief executive officer and the son of Steve\n\nFerguson, asked her to search for any documents related to the Red Road property.\n\nShe asserted that she discovered the assignment in the files of a deceased Maritime\n\nexecutive who had managed the loan transaction with Gutierrez. Alfonso also\n\ntestified that she returned to the storage room to ensure that there were no other\n\ndocuments responsive to the description she was given. Cross-examination by the\n\ngovernment and questioning by the district court made clear that this testimony\n\nconflicted with Alfonso’s earlier deposition testimony, in which she agreed that\n\nshe did not have “occasion to go back into the storage room and look at the folder\n\nor anything else that was around that document.”\n\n Norwitch testified as an expert after the government stipulated to his\n\nqualifications. He testified that he examined the watermark and the ink used in\n\nboth the typed and handwritten portions of the collateral assignment and concluded\n\nthat there was “no evidence that this document was anything other than what it is\n\npurported to be.” But Norwitch explained that the ink used in the document has\n\nbeen in commercial use for decades and that he could not determine “when [the]\n\ndocument was signed.” And Gutierrez testified that he executed the collateral\n\nassignment on July 24, 2001, after Maritime requested additional collateral. He\n\nadmitted that he failed to list the assignment in his presentence investigation report\n\nand testified that he never thought to record the multi-million-dollar transaction.\n\n\n\n 6\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 7 of 16\n\n\nGutierrez also acknowledged that he had been convicted of crimes of fraud and\n\nthat he had falsified his community-service hours after being released from prison.\n\n After the hearing for the first phase of trial, the district court ruled that\n\nMaritime had failed to carry its burden of proving the authenticity of the collateral\n\nassignment “by the greater weight of the evidence.” The court determined that\n\ncircumstantial evidence and unexplained defects present on the face of the\n\ndocument undermined the inference that the assignment was authentic. It also\n\ndetermined that the expert testimony was inconclusive, that Alfonso and Gutierrez\n\nwere not credible, and that virtually no evidence corroborated the authenticity of\n\nthe assignment. Having ruled that the collateral assignment was inauthentic, the\n\ndistrict court concluded that it was unnecessary to proceed to the second phase of\n\ntrial and denied Maritime’s claim.\n\n II. STANDARD OF REVIEW\n\n “We review a district court’s legal conclusions regarding third-party claims\n\nto criminally forfeited property de novo and its factual findings for clear error.”\n\nUnited States v. Marion, 562 F.3d 1330, 1335 (11th Cir. 2009).\n\n III. DISCUSSION\n\n We divide our discussion in two parts. First, we explain that although the\n\ndistrict court applied the wrong standard when it assessed the authenticity of the\n\nalleged collateral assignment, the error was harmless. Second, we explain that the\n\n\n\n 7\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 8 of 16\n\n\ndistrict court erred by permitting Trinidad to intervene, but this error too does not\n\nwarrant reversal.\n\n A. The District Court Committed Harmless Error in Ruling that the\n Collateral Assignment Was Inauthentic.\n\n The district court ruled that the “burden of proof” was “on Maritime to prove\n\nby the greater weight of the evidence that the collateral assignment” is “an\n\nauthentic document,” but this ruling was in error. Even so, Maritime has suffered\n\nno prejudice.\n\n A two-step process governs the determination of whether a document is\n\nauthentic. The district court must first make a preliminary assessment of\n\nauthenticity under Rule 901, which “requires a proponent to present ‘sufficient\n\nevidence to make out a prima facie case that the proffered evidence is what it\n\npurports to be.’” United States v. Lebowitz, 676 F.3d 1000, 1009 (11th Cir. 2012)\n\n(quoting United States v. Belfast, 611 F.3d 783, 819 (11th Cir. 2010)). If the\n\nproponent satisfies this “prima facie burden,” the inquiry proceeds to a second\n\nstep, in which “the evidence may be admitted, and the ultimate question of\n\nauthenticity is then decided by the [factfinder].” Id.; see also In re Int’l Mgmt.\n\nAssocs., LLC, 781 F.3d 1262, 1267 (11th Cir. 2015) (“Once [a] prima facie\n\nshowing of authenticity [is] made, the ultimate question of the authenticity of the\n\ndocuments [is] left to the factfinder.”).\n\n\n\n\n 8\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 9 of 16\n\n\n The first phase of the bifurcated trial framework adopted by the district court\n\nwas intended to address only the preliminary question of authenticity. Under the\n\ntwo-step process contemplated by Rule 901, Maritime bore the burden of\n\nestablishing a prima facie case of authenticity at the first stage. Only at the second\n\nstep would “the trier of fact . . . appraise whether the proffered evidence is in fact\n\nwhat it purports to be.” United States v. Caldwell, 776 F.2d 989, 1002 (11th Cir.\n\n1985).\n\n By requiring Maritime to prove authenticity by “the greater weight of the\n\nevidence,” the district court compressed the two steps of the inquiry under Rule\n\n901 into one and conflated the issue of authenticity with the issue of entitlement to\n\nthe proceeds of the sale of the Red Road property, but this technical error need not\n\nwarrant reversal. Federal Rule of Civil Procedure 61 permits reversal based on a\n\ntrial error “only where the error has caused substantial prejudice to the affected\n\nparty (or, stated somewhat differently, affected the party's substantial rights or\n\nresulted in substantial injustice).” Peat, Inc. v. Vanguard Research, Inc., 378 F.3d\n\n1154, 1162 (11th Cir. 2004) (internal quotation marks omitted). The error by the\n\ndistrict court prejudiced Maritime only if there is a “reasonable likelihood that the\n\noutcome would have been different” if the district court had ruled that Maritime\n\nsatisfied its burden to prove a prima facie case of authenticity before proceeding to\n\n\n\n\n 9\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 10 of 16\n\n\ndetermine whether Maritime had an interest in the Red Road property. United\n\nStates v. Jeri, 869 F.3d 1247, 1262 (11th Cir. 2017).\n\n Maritime suffered no prejudice. If the district court had followed the process\n\ncontemplated by Rule 901, it would have answered the ultimate question of\n\nauthenticity in the same way; the outcome of the trial would not have differed.\n\n The first phase of the trial featured all of the evidence relevant to the\n\nquestion of authenticity. Maritime was on notice that the district court would apply\n\na preponderance standard in determining whether the assignment was authentic\n\nand had every incentive to produce all relevant evidence. The second phase would\n\nhave been a bench trial, see 21 U.S.C. § 853(n)(2), so the district court inevitably\n\nwould have reached the same answer to the “ultimate question of authenticity”\n\nwhen it acted as the finder of fact. Lebowitz, 676 F.3d at 1009.\n\n The district court was entitled to find that the assignment was not authentic\n\nunder the preponderance standard applicable at the second step of the inquiry\n\nunder Rule 901, and Maritime’s claim was bound to fail if the assignment was\n\ninauthentic. Maritime never asserted any other potential source of an interest in the\n\nRed Road property, and its trial counsel even conceded that it “only has a claim if\n\nit has an assignment.” In other words, Maritime’s claim stood or fell with the\n\nauthenticity of the collateral assignment.\n\n\n\n\n 10\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 11 of 16\n\n\n The collateral assignment was suspect on its face. It was neither witnessed\n\nnor notarized, even though Raul Gutierrez admitted that his secretary was a notary.\n\nThe document does not so much as mention the legal titleholder of the Red Road\n\nproperty, Inversiones Rapidven, and contains no legal description of the property.\n\nThe document was printed on Calmaquip letterhead, even though Lesley Alfonso,\n\na Maritime director, testified that it was the practice of Maritime to prepare its own\n\nloan documents. The assignment was purportedly created to secure a limited\n\nguarantee agreement in which Maritime lent $2 million to Keystone Construction.\n\nThe assignment states that the limited guaranty agreement was attached to it, but\n\nAlfonso testified that nothing was attached to the assignment when she allegedly\n\nfound it. Maritime’s own expert concluded that there was no evidence suggesting\n\nthat anything had ever been attached to the assignment. And the assignment was\n\nnever recorded—an astonishing oversight in a multi-million-dollar transaction.\n\n Circumstantial evidence also supported the finding that the assignment was\n\ninauthentic. The limited guaranty agreement makes no mention of the collateral\n\nassignment. And as the district court explained, there was “not a single document”\n\nthat “referenced the collateral assignment . . . before or after” the assignment was\n\nallegedly executed, other than a letter that Gutierrez purportedly sent to Richard\n\nLacle, his associate at Inversiones Rapidven. This letter lacked any indicia of\n\nauthenticity, such as a letterhead, physical or email address, or method of\n\n\n\n 11\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 12 of 16\n\n\ntransmission. And Lacle denied ever receiving the letter and suggested that it was\n\nfabricated. And finally, Gutierrez listed the Red Road property as an\n\nunencumbered asset in his presentence investigation report and failed to list the\n\ncollateral assignment as a debt.\n\n Based on this evidence, the district court was entitled to infer that there was\n\na post hoc plot between Gutierrez and Maritime to spare the Red Road property\n\nfrom forfeiture through a fabricated assignment of an interest to Maritime. As we\n\nhave explained, “[a] district court has discretion to determine authenticity, and that\n\ndetermination should not be disturbed on appeal absent a showing that there is no\n\ncompetent evidence in the record to support it.” United States v. Siddiqui, 235 F.3d\n\n1318, 1322 (11th Cir. 2000). Even if we were to assume that Gutierrez’s signature\n\non the assignment is genuine, it is entirely possible that he signed shortly before he\n\nwent to prison in an effort to shield his property from forfeiture. Ample evidence\n\nestablished the existence of a close relationship between Gutierrez and the officers\n\nof Maritime. We reject Maritime’s assertion that Gutierrez could not possibly have\n\nanticipated that the government would seek forfeiture of his property. We expect\n\nthat a person who knows he is under investigation in a case of complex financial\n\nfraud could have foreseen the impending forfeiture.\n\n\n\n\n 12\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 13 of 16\n\n\n Ample evidence supports the finding by the district court on the ultimate\n\nquestion of authenticity. And that finding controlled whether Maritime had an\n\ninterest in the Red Road property. So no prejudicial error occurred.\n\n B. Trinidad’s Intervention Does Not Merit Reversal.\n\n Maritime also argues, and we agree, that the district court erred in\n\npermitting Trinidad, a foreign sovereign, to intervene in the ancillary\n\nproceeding to litigate on behalf of the United States. To represent the United\n\nStates, an attorney must be either a United States Attorney, an assistant United\n\nStates Attorney, or a special attorney. See 28 U.S.C. § 541(a) (creating\n\nprocedures for appointing a United States Attorney for each judicial district); id.\n\n§ 542(a) (creating procedures for appointing assistant United States Attorneys);\n\nid. § 543(a) (creating procedures for appointing special attorneys to assist\n\nUnited States Attorneys). And every attorney representing the United States\n\nmust take an oath of office. See id. § 544 (requiring United States Attorneys,\n\nassistant United States Attorneys, and specially appointed attorneys to take an\n\noath to faithfully execute their duties). Trinidad was not specially appointed to\n\nlitigate on behalf of the United States and took no oath of office.\n\n Nor did Trinidad have standing to intervene to defend its own interests.\n\nCongress has created one—and only one—means for interested third-parties to\n\nparticipate in a criminal-forfeiture proceeding: asserting a “legal right, title, or\n\n\n\n 13\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 14 of 16\n\n\ninterest” sufficient for standing in an ancillary proceeding, 21 U.S.C. § 853(n).\n\nSection 853(k) of the statute governing criminal forfeitures provides that\n\n“[e]xcept as provided in subsection (n), no party claiming an interest in property\n\nsubject to forfeiture under this section” may “intervene in a trial or appeal of a\n\ncriminal case involving the forfeiture of such property under this section.” Id.\n\n§ 853(k). As we have explained, “[a]n ancillary proceeding constitutes the sole\n\nmeans by which a third-party claimant can establish entitlement to return of\n\nforfeited property.” United States v. Davenport, 668 F.3d 1316, 1320 (11th Cir.\n\n2012). Trinidad made no attempt to intervene under section 853(n) and did not\n\nassert any “legal right, title, or interest” in the Red Road property, 21 U.S.C.\n\n§ 853(n).\n\n Although there was no legal basis for Trinidad’s intervention, this error\n\ntoo does not warrant reversal. Maritime makes two arguments about prejudice,\n\nbut neither is persuasive.\n\n First, Maritime argues that Trinidad’s participation was prejudicial\n\nbecause the district court relied on deposition testimony elicited by Trinidad in\n\nfinding a material inconsistency in the testimony of Alfonso. But the bare fact\n\nthat the district court relied in part on evidence generated by Trinidad to\n\ndiscredit Alfonso’s testimony does not prove prejudicial error. As the district\n\ncourt stated, its ruling against Maritime did not depend on its rejection of\n\n\n\n 14\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 15 of 16\n\n\nAlfonso’s testimony. The district court concluded that “even if” Alfonso “were\n\ncredible,” it was “just as likely” that the collateral assignment “could have been\n\nplaced there by anybody, and then she was sent . . . on her merry way to find\n\nthat document.” The district court was entitled to credit this alternative\n\nexplanation of the discovery of the collateral assignment in the light of the\n\nnumerous deficiencies in the document itself and the surrounding circumstantial\n\nevidence that it was not genuine.\n\n The district court also had another, independent ground for discounting\n\nAlfonso’s testimony: that she was not “an unbiased witness.” Alfonso is a\n\nformer employee and current director of Maritime. She had an obvious\n\nincentive to tailor her testimony to support Maritime’s interests. And regardless\n\nof whether we would have regarded this incentive as sufficient to discredit\n\nAlfonso’s testimony in the exercise of our independent judgment, the credibility\n\ndetermination by the district court is binding on us. As we have explained,\n\n“[t]he credibility of a witness is in the province of the factfinder,” and we “will\n\nnot ordinarily review the factfinder’s determination of credibility.” United\n\nStates v. Copeland, 20 F.3d 412, 413 (11th Cir. 1994).\n\n Second, Maritime argues, based on Young v. United States ex rel. Vuitton\n\net Fils S.A., 481 U.S. 787 (1987), that permitting a third party to litigate on\n\nbehalf of the United States in an ancillary forfeiture proceeding is structural\n\n\n\n 15\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 16 of 16\n\n\nerror, but this argument is a nonstarter. In Young, a plurality of the Supreme\n\nCourt concluded that the “appointment of an interested prosecutor” in a\n\ncriminal contempt proceeding is a structural error. Id. at 810. This rule does not\n\napply to an ancillary proceeding conducted under section 853(n) because such a\n\nproceeding is civil in nature. See, e.g., United States v. Douglas, 55 F.3d 584,\n\n586 (11th Cir. 1995) (“Congress therefore viewed a [section] 853(n) hearing as\n\na species of an ‘action at law or equity’—a substitute for separate civil litigation\n\nagainst the government.”); United States v. Gilbert, 244 F.3d 888, 907 (11th\n\nCir. 2001), superseded by rule on other grounds as recognized in United States\n\nv. Marion, 562 F.3d 1330 (11th Cir. 2009) (expanding Douglas to other kinds\n\nof forfeitures). Indeed, if there were a constitutional prohibition on interested\n\nprivate parties representing the United States in civil actions, the validity of\n\nstatutes such as the False Claims Act, 31 U.S.C. § 3730, would be doubtful.\n\n Trinidad’s intervention did not affect Maritime’s “substantial rights.”\n\nFed. R. Civ. P. 61. Although the district court erred in permitting a foreign\n\nsovereign with no interest of its own to litigate on behalf of the United States,\n\nthis error does not require reversal of the dismissal of Maritime’s claim.\n\n IV. CONCLUSION\n\n We AFFIRM the judgment in favor of the United States.\n\n\n\n\n 16\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. MARITIME LIFE CARIBBEAN LIMITED, Interested Party-Appellant, Raul J. Gutierrez, Defendant.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-01-16\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-10889 Date Filed: 01/16/2019 Page: 1 of 16\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-10889\\n ________________________\\n\\n D.C. Docket No. 1:05-cr-20859-PCH\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff-Appellee,\\n versus\\n\\nMARITIME LIFE CARIBBEAN LIMITED,\\n\\n Interested Party-Appellant,\\n\\nRAUL J. GUTIERREZ,\\n\\n Defendant.\\n\\n\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Florida\\n _______________________\\n\\n (January 16, 2019)\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 2 of 16\\n\\n\\nBefore WILLIAM PRYOR and MARTIN, Circuit Judges, and WOOD, *\\n\\nDistrict Judge.\\n\\nWILLIAM PRYOR, Circuit Judge:\\n\\n This appeal involves two questions about an ancillary third-party forfeiture\\n\\nproceeding in which Maritime Life Caribbean asserted that it was given a security\\n\\ninterest in the forfeited property: whether the district court erred in requiring\\n\\nMaritime Life to prove the authenticity of the collateral assignment that allegedly\\n\\ngranted it a security interest in the forfeited property by a preponderance of the\\n\\nevidence, and whether the district court erred in permitting the Republic of\\n\\nTrinidad and Tobago to intervene in the forfeiture proceeding even though it had\\n\\nno legal interest in the property. We conclude that, although both rulings were in\\n\\nerror, neither error warrants reversal. We affirm.\\n\\n I. BACKGROUND\\n\\n Raul Gutierrez pleaded guilty in 2006 to a variety of wire- and bank-fraud\\n\\ncharges arising from a bid-rigging scheme involving the construction of an airport\\n\\nin Trinidad and Tobago. After sentencing, the district court entered a preliminary\\n\\norder of forfeiture against him in the amount of $22,556,100, representing the\\n\\nproceeds of his criminal activity. The forfeiture included Gutierrez’s interest in a\\n\\npiece of real property located at 12850 Red Road in Coral Cables, Florida, the title\\n\\n\\n*\\n The Honorable Lisa Godbey Wood, United States District Judge for the Southern District of\\nGeorgia, sitting by designation.\\n\\n\\n 2\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 3 of 16\\n\\n\\nfor which was held by Inversiones Rapidven, S.A. Although the plea agreement\\n\\nexhaustively listed Gutierrez’s assets and liabilities, it did not mention any\\n\\nencumbrance on the Red Road property.\\n\\n The Republic of Trinidad and Tobago moved to intervene in the forfeiture\\n\\nproceeding under Federal Rule of Criminal Procedure 32.2. Trinidad asserted that\\n\\nit was a victim of the bid-rigging conspiracy and that it had an interest in any\\n\\nforfeiture proceeds that might result from the sale of the Red Road property, but it\\n\\ndid not assert any legal interest in the property itself. The district court expressed\\n\\nskepticism about the propriety of permitting Trinidad to intervene and\\n\\nacknowledged that it was “not sure if [Trinidad has] standing” under the statute\\n\\ngoverning criminal forfeitures, 21 U.S.C. § 853. Despite these misgivings, the\\n\\ndistrict court granted Trinidad’s motion to intervene. It directed Trinidad and the\\n\\ngovernment to “form a committee on the government[/]victim side and decide who\\n\\nwill be speaking for that group.”\\n\\n At a later status conference, the government expressed concern over a\\n\\n“potential conflict” between the parties’ interests and argued that victims like\\n\\nTrinidad do not “have standing in a forfeiture proceeding.” The district court\\n\\ndisregarded this concern on the ground that the government was “going to get a lot\\n\\nof cooperation from the lawyers for [Trinidad]” and Trinidad probably would end\\n\\nup “carrying the laboring oar . . . from this point forward.” In the district court’s\\n\\n\\n\\n 3\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 4 of 16\\n\\n\\nview, Trinidad’s intervention was permissible because it was the party who was\\n\\n“going to benefit if the government wins on the forfeiture.”\\n\\n In 2010, the district court instructed the government to issue a Notice of\\n\\nCriminal Forfeiture addressed to Steve Ferguson, the former chief executive officer\\n\\nof Maritime Life. Ferguson and Gutierrez were longtime business associates and\\n\\nfriends, and both were implicated in the criminal charges underlying the forfeiture\\n\\nproceeding. Maritime responded to the notice by filing a third-party claim asserting\\n\\nan interest in the Red Road property under the criminal-forfeiture statute, 21\\n\\nU.S.C. § 853(n), and Rule 32.2(c). To support its claim, Maritime produced an\\n\\nalleged collateral assignment that purported to memorialize a transaction in which\\n\\nGutierrez granted a security interest in the Red Road property to Maritime as\\n\\ncollateral for a $2 million loan to Keystone Property Developers, Ltd., Gutierrez’s\\n\\nconstruction company. The alleged assignment is dated July 24, 2001 and was\\n\\nsigned by Gutierrez in his capacity as president of Calmaquip Engineering\\n\\nCorporation, but it was never recorded.\\n\\n The government and Trinidad opposed Maritime’s claim. The parties then\\n\\nengaged in protracted discovery in which Trinidad played a significant role,\\n\\nleading 14 depositions on behalf of the government. Maritime objected to\\n\\nTrinidad’s participation in the litigation, but the district court denied its motion.\\n\\nThe district court acknowledged that Trinidad “does not have a direct claim under\\n\\n\\n\\n 4\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 5 of 16\\n\\n\\n[section] 853 or under the forfeiture claim” but permitted Trinidad to proceed, “not\\n\\nin [its] own rights, but . . . to do the work on behalf of the government.”\\n\\n After discovery, Trinidad and the government jointly moved for summary\\n\\njudgment, but the district court denied that motion. Instead, it sua sponte decided\\n\\nto hold a bifurcated trial with an initial phase focused solely on the question\\n\\nwhether “to admit the collateral assignment as being genuine and authentic” under\\n\\nFederal Rule of Evidence 901. The second phase was to address the merits of\\n\\nMaritime’s interest in the Red Road property. The district court explained that the\\n\\nquestion of authenticity was “a nice clean issue” that, if resolved against Maritime,\\n\\nwould obviate the need to resolve the complicated dispute about the legal effect of\\n\\nan unrecorded assignment of a security interest in real property for which\\n\\nGutierrez, the party who allegedly conveyed the assignment, did not hold title.\\n\\nMaritime objected on the ground that the authenticity issue should be consolidated\\n\\nwith the merits issues, but it later conceded that an adverse ruling on authenticity\\n\\nwould make the “other issues . . . go away.”\\n\\n At the hearing for the first phase of trial, Maritime presented three witnesses:\\n\\nLesley Alfonso, the Maritime director who allegedly discovered the collateral\\n\\nassignment; Frank Norwitch, a certified document examiner who reviewed the\\n\\ncollateral assignment; and Raul Gutierrez, who allegedly signed the assignment.\\n\\nThe government presented no live witnesses. Alfonso testified that in early 2010,\\n\\n\\n\\n 5\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 6 of 16\\n\\n\\nAndrew Ferguson, Maritime’s chief executive officer and the son of Steve\\n\\nFerguson, asked her to search for any documents related to the Red Road property.\\n\\nShe asserted that she discovered the assignment in the files of a deceased Maritime\\n\\nexecutive who had managed the loan transaction with Gutierrez. Alfonso also\\n\\ntestified that she returned to the storage room to ensure that there were no other\\n\\ndocuments responsive to the description she was given. Cross-examination by the\\n\\ngovernment and questioning by the district court made clear that this testimony\\n\\nconflicted with Alfonso’s earlier deposition testimony, in which she agreed that\\n\\nshe did not have “occasion to go back into the storage room and look at the folder\\n\\nor anything else that was around that document.”\\n\\n Norwitch testified as an expert after the government stipulated to his\\n\\nqualifications. He testified that he examined the watermark and the ink used in\\n\\nboth the typed and handwritten portions of the collateral assignment and concluded\\n\\nthat there was “no evidence that this document was anything other than what it is\\n\\npurported to be.” But Norwitch explained that the ink used in the document has\\n\\nbeen in commercial use for decades and that he could not determine “when [the]\\n\\ndocument was signed.” And Gutierrez testified that he executed the collateral\\n\\nassignment on July 24, 2001, after Maritime requested additional collateral. He\\n\\nadmitted that he failed to list the assignment in his presentence investigation report\\n\\nand testified that he never thought to record the multi-million-dollar transaction.\\n\\n\\n\\n 6\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 7 of 16\\n\\n\\nGutierrez also acknowledged that he had been convicted of crimes of fraud and\\n\\nthat he had falsified his community-service hours after being released from prison.\\n\\n After the hearing for the first phase of trial, the district court ruled that\\n\\nMaritime had failed to carry its burden of proving the authenticity of the collateral\\n\\nassignment “by the greater weight of the evidence.” The court determined that\\n\\ncircumstantial evidence and unexplained defects present on the face of the\\n\\ndocument undermined the inference that the assignment was authentic. It also\\n\\ndetermined that the expert testimony was inconclusive, that Alfonso and Gutierrez\\n\\nwere not credible, and that virtually no evidence corroborated the authenticity of\\n\\nthe assignment. Having ruled that the collateral assignment was inauthentic, the\\n\\ndistrict court concluded that it was unnecessary to proceed to the second phase of\\n\\ntrial and denied Maritime’s claim.\\n\\n II. STANDARD OF REVIEW\\n\\n “We review a district court’s legal conclusions regarding third-party claims\\n\\nto criminally forfeited property de novo and its factual findings for clear error.”\\n\\nUnited States v. Marion, 562 F.3d 1330, 1335 (11th Cir. 2009).\\n\\n III. DISCUSSION\\n\\n We divide our discussion in two parts. First, we explain that although the\\n\\ndistrict court applied the wrong standard when it assessed the authenticity of the\\n\\nalleged collateral assignment, the error was harmless. Second, we explain that the\\n\\n\\n\\n 7\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 8 of 16\\n\\n\\ndistrict court erred by permitting Trinidad to intervene, but this error too does not\\n\\nwarrant reversal.\\n\\n A. The District Court Committed Harmless Error in Ruling that the\\n Collateral Assignment Was Inauthentic.\\n\\n The district court ruled that the “burden of proof” was “on Maritime to prove\\n\\nby the greater weight of the evidence that the collateral assignment” is “an\\n\\nauthentic document,” but this ruling was in error. Even so, Maritime has suffered\\n\\nno prejudice.\\n\\n A two-step process governs the determination of whether a document is\\n\\nauthentic. The district court must first make a preliminary assessment of\\n\\nauthenticity under Rule 901, which “requires a proponent to present ‘sufficient\\n\\nevidence to make out a prima facie case that the proffered evidence is what it\\n\\npurports to be.’” United States v. Lebowitz, 676 F.3d 1000, 1009 (11th Cir. 2012)\\n\\n(quoting United States v. Belfast, 611 F.3d 783, 819 (11th Cir. 2010)). If the\\n\\nproponent satisfies this “prima facie burden,” the inquiry proceeds to a second\\n\\nstep, in which “the evidence may be admitted, and the ultimate question of\\n\\nauthenticity is then decided by the [factfinder].” Id.; see also In re Int’l Mgmt.\\n\\nAssocs., LLC, 781 F.3d 1262, 1267 (11th Cir. 2015) (“Once [a] prima facie\\n\\nshowing of authenticity [is] made, the ultimate question of the authenticity of the\\n\\ndocuments [is] left to the factfinder.”).\\n\\n\\n\\n\\n 8\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 9 of 16\\n\\n\\n The first phase of the bifurcated trial framework adopted by the district court\\n\\nwas intended to address only the preliminary question of authenticity. Under the\\n\\ntwo-step process contemplated by Rule 901, Maritime bore the burden of\\n\\nestablishing a prima facie case of authenticity at the first stage. Only at the second\\n\\nstep would “the trier of fact . . . appraise whether the proffered evidence is in fact\\n\\nwhat it purports to be.” United States v. Caldwell, 776 F.2d 989, 1002 (11th Cir.\\n\\n1985).\\n\\n By requiring Maritime to prove authenticity by “the greater weight of the\\n\\nevidence,” the district court compressed the two steps of the inquiry under Rule\\n\\n901 into one and conflated the issue of authenticity with the issue of entitlement to\\n\\nthe proceeds of the sale of the Red Road property, but this technical error need not\\n\\nwarrant reversal. Federal Rule of Civil Procedure 61 permits reversal based on a\\n\\ntrial error “only where the error has caused substantial prejudice to the affected\\n\\nparty (or, stated somewhat differently, affected the party's substantial rights or\\n\\nresulted in substantial injustice).” Peat, Inc. v. Vanguard Research, Inc., 378 F.3d\\n\\n1154, 1162 (11th Cir. 2004) (internal quotation marks omitted). The error by the\\n\\ndistrict court prejudiced Maritime only if there is a “reasonable likelihood that the\\n\\noutcome would have been different” if the district court had ruled that Maritime\\n\\nsatisfied its burden to prove a prima facie case of authenticity before proceeding to\\n\\n\\n\\n\\n 9\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 10 of 16\\n\\n\\ndetermine whether Maritime had an interest in the Red Road property. United\\n\\nStates v. Jeri, 869 F.3d 1247, 1262 (11th Cir. 2017).\\n\\n Maritime suffered no prejudice. If the district court had followed the process\\n\\ncontemplated by Rule 901, it would have answered the ultimate question of\\n\\nauthenticity in the same way; the outcome of the trial would not have differed.\\n\\n The first phase of the trial featured all of the evidence relevant to the\\n\\nquestion of authenticity. Maritime was on notice that the district court would apply\\n\\na preponderance standard in determining whether the assignment was authentic\\n\\nand had every incentive to produce all relevant evidence. The second phase would\\n\\nhave been a bench trial, see 21 U.S.C. § 853(n)(2), so the district court inevitably\\n\\nwould have reached the same answer to the “ultimate question of authenticity”\\n\\nwhen it acted as the finder of fact. Lebowitz, 676 F.3d at 1009.\\n\\n The district court was entitled to find that the assignment was not authentic\\n\\nunder the preponderance standard applicable at the second step of the inquiry\\n\\nunder Rule 901, and Maritime’s claim was bound to fail if the assignment was\\n\\ninauthentic. Maritime never asserted any other potential source of an interest in the\\n\\nRed Road property, and its trial counsel even conceded that it “only has a claim if\\n\\nit has an assignment.” In other words, Maritime’s claim stood or fell with the\\n\\nauthenticity of the collateral assignment.\\n\\n\\n\\n\\n 10\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 11 of 16\\n\\n\\n The collateral assignment was suspect on its face. It was neither witnessed\\n\\nnor notarized, even though Raul Gutierrez admitted that his secretary was a notary.\\n\\nThe document does not so much as mention the legal titleholder of the Red Road\\n\\nproperty, Inversiones Rapidven, and contains no legal description of the property.\\n\\nThe document was printed on Calmaquip letterhead, even though Lesley Alfonso,\\n\\na Maritime director, testified that it was the practice of Maritime to prepare its own\\n\\nloan documents. The assignment was purportedly created to secure a limited\\n\\nguarantee agreement in which Maritime lent $2 million to Keystone Construction.\\n\\nThe assignment states that the limited guaranty agreement was attached to it, but\\n\\nAlfonso testified that nothing was attached to the assignment when she allegedly\\n\\nfound it. Maritime’s own expert concluded that there was no evidence suggesting\\n\\nthat anything had ever been attached to the assignment. And the assignment was\\n\\nnever recorded—an astonishing oversight in a multi-million-dollar transaction.\\n\\n Circumstantial evidence also supported the finding that the assignment was\\n\\ninauthentic. The limited guaranty agreement makes no mention of the collateral\\n\\nassignment. And as the district court explained, there was “not a single document”\\n\\nthat “referenced the collateral assignment . . . before or after” the assignment was\\n\\nallegedly executed, other than a letter that Gutierrez purportedly sent to Richard\\n\\nLacle, his associate at Inversiones Rapidven. This letter lacked any indicia of\\n\\nauthenticity, such as a letterhead, physical or email address, or method of\\n\\n\\n\\n 11\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 12 of 16\\n\\n\\ntransmission. And Lacle denied ever receiving the letter and suggested that it was\\n\\nfabricated. And finally, Gutierrez listed the Red Road property as an\\n\\nunencumbered asset in his presentence investigation report and failed to list the\\n\\ncollateral assignment as a debt.\\n\\n Based on this evidence, the district court was entitled to infer that there was\\n\\na post hoc plot between Gutierrez and Maritime to spare the Red Road property\\n\\nfrom forfeiture through a fabricated assignment of an interest to Maritime. As we\\n\\nhave explained, “[a] district court has discretion to determine authenticity, and that\\n\\ndetermination should not be disturbed on appeal absent a showing that there is no\\n\\ncompetent evidence in the record to support it.” United States v. Siddiqui, 235 F.3d\\n\\n1318, 1322 (11th Cir. 2000). Even if we were to assume that Gutierrez’s signature\\n\\non the assignment is genuine, it is entirely possible that he signed shortly before he\\n\\nwent to prison in an effort to shield his property from forfeiture. Ample evidence\\n\\nestablished the existence of a close relationship between Gutierrez and the officers\\n\\nof Maritime. We reject Maritime’s assertion that Gutierrez could not possibly have\\n\\nanticipated that the government would seek forfeiture of his property. We expect\\n\\nthat a person who knows he is under investigation in a case of complex financial\\n\\nfraud could have foreseen the impending forfeiture.\\n\\n\\n\\n\\n 12\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 13 of 16\\n\\n\\n Ample evidence supports the finding by the district court on the ultimate\\n\\nquestion of authenticity. And that finding controlled whether Maritime had an\\n\\ninterest in the Red Road property. So no prejudicial error occurred.\\n\\n B. Trinidad’s Intervention Does Not Merit Reversal.\\n\\n Maritime also argues, and we agree, that the district court erred in\\n\\npermitting Trinidad, a foreign sovereign, to intervene in the ancillary\\n\\nproceeding to litigate on behalf of the United States. To represent the United\\n\\nStates, an attorney must be either a United States Attorney, an assistant United\\n\\nStates Attorney, or a special attorney. See 28 U.S.C. § 541(a) (creating\\n\\nprocedures for appointing a United States Attorney for each judicial district); id.\\n\\n§ 542(a) (creating procedures for appointing assistant United States Attorneys);\\n\\nid. § 543(a) (creating procedures for appointing special attorneys to assist\\n\\nUnited States Attorneys). And every attorney representing the United States\\n\\nmust take an oath of office. See id. § 544 (requiring United States Attorneys,\\n\\nassistant United States Attorneys, and specially appointed attorneys to take an\\n\\noath to faithfully execute their duties). Trinidad was not specially appointed to\\n\\nlitigate on behalf of the United States and took no oath of office.\\n\\n Nor did Trinidad have standing to intervene to defend its own interests.\\n\\nCongress has created one—and only one—means for interested third-parties to\\n\\nparticipate in a criminal-forfeiture proceeding: asserting a “legal right, title, or\\n\\n\\n\\n 13\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 14 of 16\\n\\n\\ninterest” sufficient for standing in an ancillary proceeding, 21 U.S.C. § 853(n).\\n\\nSection 853(k) of the statute governing criminal forfeitures provides that\\n\\n“[e]xcept as provided in subsection (n), no party claiming an interest in property\\n\\nsubject to forfeiture under this section” may “intervene in a trial or appeal of a\\n\\ncriminal case involving the forfeiture of such property under this section.” Id.\\n\\n§ 853(k). As we have explained, “[a]n ancillary proceeding constitutes the sole\\n\\nmeans by which a third-party claimant can establish entitlement to return of\\n\\nforfeited property.” United States v. Davenport, 668 F.3d 1316, 1320 (11th Cir.\\n\\n2012). Trinidad made no attempt to intervene under section 853(n) and did not\\n\\nassert any “legal right, title, or interest” in the Red Road property, 21 U.S.C.\\n\\n§ 853(n).\\n\\n Although there was no legal basis for Trinidad’s intervention, this error\\n\\ntoo does not warrant reversal. Maritime makes two arguments about prejudice,\\n\\nbut neither is persuasive.\\n\\n First, Maritime argues that Trinidad’s participation was prejudicial\\n\\nbecause the district court relied on deposition testimony elicited by Trinidad in\\n\\nfinding a material inconsistency in the testimony of Alfonso. But the bare fact\\n\\nthat the district court relied in part on evidence generated by Trinidad to\\n\\ndiscredit Alfonso’s testimony does not prove prejudicial error. As the district\\n\\ncourt stated, its ruling against Maritime did not depend on its rejection of\\n\\n\\n\\n 14\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 15 of 16\\n\\n\\nAlfonso’s testimony. The district court concluded that “even if” Alfonso “were\\n\\ncredible,” it was “just as likely” that the collateral assignment “could have been\\n\\nplaced there by anybody, and then she was sent . . . on her merry way to find\\n\\nthat document.” The district court was entitled to credit this alternative\\n\\nexplanation of the discovery of the collateral assignment in the light of the\\n\\nnumerous deficiencies in the document itself and the surrounding circumstantial\\n\\nevidence that it was not genuine.\\n\\n The district court also had another, independent ground for discounting\\n\\nAlfonso’s testimony: that she was not “an unbiased witness.” Alfonso is a\\n\\nformer employee and current director of Maritime. She had an obvious\\n\\nincentive to tailor her testimony to support Maritime’s interests. And regardless\\n\\nof whether we would have regarded this incentive as sufficient to discredit\\n\\nAlfonso’s testimony in the exercise of our independent judgment, the credibility\\n\\ndetermination by the district court is binding on us. As we have explained,\\n\\n“[t]he credibility of a witness is in the province of the factfinder,” and we “will\\n\\nnot ordinarily review the factfinder’s determination of credibility.” United\\n\\nStates v. Copeland, 20 F.3d 412, 413 (11th Cir. 1994).\\n\\n Second, Maritime argues, based on Young v. United States ex rel. Vuitton\\n\\net Fils S.A., 481 U.S. 787 (1987), that permitting a third party to litigate on\\n\\nbehalf of the United States in an ancillary forfeiture proceeding is structural\\n\\n\\n\\n 15\\n\\f Case: 17-10889 Date Filed: 01/16/2019 Page: 16 of 16\\n\\n\\nerror, but this argument is a nonstarter. In Young, a plurality of the Supreme\\n\\nCourt concluded that the “appointment of an interested prosecutor” in a\\n\\ncriminal contempt proceeding is a structural error. Id. at 810. This rule does not\\n\\napply to an ancillary proceeding conducted under section 853(n) because such a\\n\\nproceeding is civil in nature. See, e.g., United States v. Douglas, 55 F.3d 584,\\n\\n586 (11th Cir. 1995) (“Congress therefore viewed a [section] 853(n) hearing as\\n\\na species of an ‘action at law or equity’—a substitute for separate civil litigation\\n\\nagainst the government.”); United States v. Gilbert, 244 F.3d 888, 907 (11th\\n\\nCir. 2001), superseded by rule on other grounds as recognized in United States\\n\\nv. Marion, 562 F.3d 1330 (11th Cir. 2009) (expanding Douglas to other kinds\\n\\nof forfeitures). Indeed, if there were a constitutional prohibition on interested\\n\\nprivate parties representing the United States in civil actions, the validity of\\n\\nstatutes such as the False Claims Act, 31 U.S.C. § 3730, would be doubtful.\\n\\n Trinidad’s intervention did not affect Maritime’s “substantial rights.”\\n\\nFed. R. Civ. P. 61. Although the district court erred in permitting a foreign\\n\\nsovereign with no interest of its own to litigate on behalf of the United States,\\n\\nthis error does not require reversal of the dismissal of Maritime’s claim.\\n\\n IV. CONCLUSION\\n\\n We AFFIRM the judgment in favor of the United States.\\n\\n\\n\\n\\n 16\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}}],"truncated":false,"partial":false},"paginationData":{"pageIndex":3,"numItemsPerPage":100,"numTotalItems":31175,"offset":300,"length":100}},"jwt":"eyJhbGciOiJFZERTQSJ9.eyJyZWFkIjp0cnVlLCJwZXJtaXNzaW9ucyI6eyJyZXBvLmNvbnRlbnQucmVhZCI6dHJ1ZX0sImlhdCI6MTc3ODQyNzIyMiwic3ViIjoiL2RhdGFzZXRzL2VpdGFucy1wdS9jbC1jb2RpbmctaW5wdXQiLCJleHAiOjE3Nzg0MzA4MjIsImlzcyI6Imh0dHBzOi8vaHVnZ2luZ2ZhY2UuY28ifQ.aruFkt3KabGsiP4YKu0w7yE8rulA53fsVjjIJE5rh2msmgAXSa62hGkj5mpH9qNQ8C_JtaguhMloH8bcohTsAA","displayUrls":true,"splitSizeSummaries":[{"config":"default","split":"train","numRows":31175,"numBytesParquet":1629387251}]},"discussionsStats":{"closed":0,"open":1,"total":1},"fullWidth":true,"hasGatedAccess":true,"hasFullAccess":true,"isEmbedded":false,"savedQueries":{"community":[],"user":[]}}">
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4,580,418 | EMPLOYERS PREFERRED INSURANCE COMPANY, a Florida Corporation, Plaintiff - Appellee, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, a Connecticut Corporation, Defendant - Appellant. | Employers Preferred Ins. Co. v. Hartford Accident & Indemnity | 2019-01-10 | 17-3355 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Colloton, Gruender, Grasz", "parties": "", "opinions": [{"author": "COLLOTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-335... | COLLOTON | GRUENDER | GRASZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4580418/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,580,825 | UNITED STATES of America, Plaintiff - Appellee v. Matthew St. PIERRE, Defendant - Appellant | United States v. Matthew St. Pierre | 2019-01-11 | 17-3657 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Shepherd, Kelly, Stras", "parties": "", "opinions": [{"author": "SHEPHERD, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3657\n... | SHEPHERD | KELLY | STRAS | 1 | {} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4580825/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,580,827 | IOWA GREAT LAKES SANITARY DISTRICT, Plaintiff - Appellant v. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA; Evoqua Water Technologies, Defendants - Appellees | Iowa Great Lakes Sanitary Dist. v. Travelers Cas. & Sur. Co. of Am. | 2019-01-11 | 17-2732 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Smith, Loken, Gruender", "parties": "", "opinions": [{"author": "LOKEN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2732\n ... | SMITH | LOKEN | GRUENDER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4580827/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,581,205 | Ramona EVANS, Plaintiff-Appellant, v. CITY OF HELENA-WEST HELENA, ARKANSAS, Defendant-Appellee. | Ramona Evans v. City of Helena-West Helena, AR | 2019-01-14 | 17-2005 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Colloton, Beam, Grasz", "parties": "", "opinions": [{"author": "COLLOTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2005... | COLLOTON | BEAM | GRASZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4581205/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,581,207 | Adam Joseph WINARSKE, Petitioner - Appellant v. UNITED STATES of America, Respondent - Appellee | Adam Winarske v. United States | 2019-01-14 | 17-2367 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Smith, Loken, Gruender", "parties": "", "opinions": [{"author": "LOKEN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2367\n ... | SMITH | LOKEN | GRUENDER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4581207/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,581,544 | Louis J. PETERSON, D.C., ON BEHALF OF Patients E, I, K, L, N, P, Q and R, and on Behalf of All Others Similarly Situated, Plaintiff-Appellee Lutz Surgical Partners, PLLC; New Life Chiropractic, PC, Plaintiffs v. UNITEDHEALTH GROUP INC.; United HealthCare Services, Inc.; United Healthcare Insurance Company; United Healt... | Peterson Ex Rel. E, I, K, L, N, P, Q & R v. UnitedHealth Grp. Inc. | 2019-01-15 | 17-1744 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Shepherd, Melloy, Grasz", "parties": "", "opinions": [{"author": "GRASZ, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17... | SHEPHERD | MELLOY | GRASZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4581544/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,581,941 | Bruce G. SCHWARTZ, Plaintiff - Appellant v. Ardis BOGEN, Formerly Known as Ardis Schwartz Defendant - Appellee | Bruce Schwartz v. Ardis Bogen | 2019-01-16 | 17-3812 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Colloton, Shepherd, Stras", "parties": "", "opinions": [{"author": "SHEPHERD, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-381... | COLLOTON | SHEPHERD | STRAS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4581941/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,583,370 | UNITED STATES of America, Plaintiff - Appellee v. Jon Henri BRYANT, Sr., Defendant - Appellant | United States v. Jon Bryant, Sr. | 2019-01-22 | 17-3523 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Wollman, Loken, Erickson", "parties": "", "opinions": [{"author": "WOLLMAN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-35... | WOLLMAN | LOKEN | ERICKSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4583370/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,583,371 | UNITED STATES of America, Plaintiff - Appellee v. Daniel Louis JACKSON, Defendant - Appellant | United States v. Daniel Jackson | 2019-01-22 | 18-1482 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Benton, Beam, Erickson", "parties": "", "opinions": [{"author": "ERICKSON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1482\n... | BENTON | BEAM | ERICKSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4583371/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,583,825 | UNITED STATES of America, Plaintiff - Appellee v. Kehinda MITCHELL, Defendant - Appellant | United States v. Kehinda Mitchell | 2019-01-23 | 18-1600 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Benton, Beam, Erickson", "parties": "", "opinions": [{"author": "ERICKSON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1600\n... | BENTON | BEAM | ERICKSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4583825/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,585,144 | UNITED STATES of America, Plaintiff-Appellee v. Willie Gill WILLIAMS, Defendant-Appellant | United States v. Willie Williams | 2019-01-28 | 17-3740 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Gruender, Kelly, Grasz", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3740\n ... | GRUENDER | KELLY | GRASZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4585144/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,585,147 | UNITED STATES of America, Plaintiff-Appellee v. Joseph D. MEYER, Defendant-Appellant | United States v. Joseph D. Meyer | 2019-01-28 | 17-3463 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Smith, Loken, Gruender", "parties": "", "opinions": [{"author": "GRUENDER, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-346... | SMITH | LOKEN | GRUENDER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4585147/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,585,148 | UNITED STATES of America, Plaintiff-Appellee v. Chavez SPOTTED HORSE, Defendant-Appellant | United States v. Chavez Spotted Horse | 2019-01-28 | 18-1139 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Loken, Erickson, Magnuson", "parties": "", "opinions": [{"author": "ERICKSON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-113... | LOKEN | ERICKSON | MAGNUSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4585148/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,585,151 | CLARKE COMPANY, LIMITED, Plaintiff - Appellant v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant - Appellee | Clarke Company, Limited v. American Family Mutual Ins. Co | 2019-01-28 | 17-2418 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Loken, Melloy, Erickson", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2418\n ... | LOKEN | MELLOY | ERICKSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4585151/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,585,384 | UNITED STATES of America, Plaintiff - Appellee v. Shaquandis THURMOND, Defendant - Appellant | United States v. Shaquandis Thurmond | 2019-01-29 | 17-3538 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Wollman, Colloton, Benton", "parties": "", "opinions": [{"author": "BENTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3538\... | WOLLMAN | COLLOTON | BENTON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4585384/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,585,387 | UNITED STATES of America, Plaintiff - Appellee v. Alonzo L. ADAMS, Defendant - Appellant | United States v. Alonzo Adams | 2019-01-29 | 16-2529 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Colloton, Benton, Kelly", "parties": "", "opinions": [{"author": "COLLOTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 16-25... | COLLOTON | BENTON | KELLY | 1 | {} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4585387/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,585,816 | UNITED STATES of America, Plaintiff - Appellee v. Jose HERNANDEZ-LOERA, Defendant - Appellant | United States v. Jose Hernandez-Loera | 2019-01-30 | 17-3793 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Colloton, Per Curiam, Shepherd, Stras", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3793\... | COLLOTON | SHEPHERD | STRAS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4585816/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,585,818 | UNITED STATES of America, Plaintiff - Appellee v. Charles Maxwell KRAUSE, Defendant - Appellant | United States v. Charles Krause | 2019-01-30 | 17-3674 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Shepherd, Kelly, Stras", "parties": "", "opinions": [{"author": "SHEPHERD, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3674\n ... | SHEPHERD | KELLY | STRAS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4585818/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,585,819 | UNITED STATES of America, Plaintiff - Appellee v. Airrington L. SYKES, Defendant - Appellant | United States v. Airrington Sykes | 2019-01-30 | 17-3221 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Wollman, Arnold, Benton", "parties": "", "opinions": [{"author": "ARNOLD, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3221... | WOLLMAN | ARNOLD | BENTON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4585819/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,585,823 | FIRST STATE BANK OF ROSCOE; John R. Beyers, Appellants v. Brad Allen STABLER; Brenda Lee Stabler, Appellees | First State Bank of Roscoe v. Brad Allen Stabler | 2019-01-30 | 17-1904 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Shepherd, Melloy, Grasz", "parties": "", "opinions": [{"author": "MELLOY, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-1904\n ... | SHEPHERD | MELLOY | GRASZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4585823/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,586,287 | Russell PEDEN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. | Russell Peden v. United States | 2019-01-31 | 17-3102 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Gruender, Kelly, Grasz", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3102\n ... | GRUENDER | KELLY | GRASZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4586287/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,586,289 | Patrick Joseph KILEY, Petitioner - Appellant v. UNITED STATES of America, Respondent - Appellee | Patrick Joseph Kiley v. United States | 2019-01-31 | 17-2428 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Wollman, Colloton, Benton", "parties": "", "opinions": [{"author": "WOLLMAN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n\n ___________________________\n\n No. 17-2428\n ... | WOLLMAN | COLLOTON | BENTON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4586289/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,586,291 | Jose Alberto MORA-HIGUERA, Petitioner - Appellant v. UNITED STATES of America, Respondent - Appellee | Jose Alberto Mora-Higuera v. United States | 2019-01-31 | 17-3638 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Shepherd, Kelly, Stras", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-3638\n ... | SHEPHERD | KELLY | STRAS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4586291/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,586,292 | GREAT AMERICAN INSURANCE COMPANY, Plaintiff - Appellee v. Jonathan L. RUSSELL, Defendant - Appellant | Great American Insurance Co. v. Jonathan Russell | 2019-01-31 | 17-2441 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Gruender, Kelly, Grasz", "parties": "", "opinions": [{"author": "KELLY, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2441\n ... | GRUENDER | KELLY | GRASZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4586292/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,578,302 | Rahinah Ibrahim v. US Dept. of Homeland Security | 2019-01-02 | 14-16161 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Sidney R. Thomas, Chief Judge, and M. Margaret McKeown, Kim McLane Wardlaw, William A. Fletcher, Marsha S. Berzon, Consuelo M. Callahan, Milan D. Smith, Jr., N. Randy Smith, Morgan Christen, Jacqueline H. Nguyen, and Paul J. Watford, Circuit Judges.", "parties": "", "opinions": [{"type": "010combine... | SIDNEY R THOMAS | M MARGARET MCKEOWN | KIM MCLANE WARDLAW | 2 | WILLIAM A FLETCHER; MARSHA S BERZON; CONSUELO M CALLAHAN; MILAN D SMITH JR; N RANDY SMITH; MORGAN CHRISTEN; JACQUELINE H NGUYEN; PAUL J WATFORD | {} | 3 | 0 | 0 | 2 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4578302/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,578,372 | Dnc v. Michele Reagan | 2019-01-02 | 18-15845 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "", "parties": "", "opinions": [{"author": "THOMAS, Chief Judge", "type": "010combined", "text": "FOR PUBLICATION FILED\n UNITED STATES COURT OF APPEALS JAN 2 2019\n MOLLY C... | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4578372/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||||||
4,579,667 | Dnc v. Michele Reagan | 2019-01-02 | 18-15845 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "", "parties": "", "opinions": [{"author": "THOMAS, Chief Judge", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nTHE DEMOCRATIC NATIONAL No. 18-15845\nCOMMITTEE; DSCC, AKA\nDemocratic Senatorial Campaign D.C... | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4579667/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||||||
4,579,666 | United States v. Victor Torres | 2019-01-08 | 15-10492 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Sidney R. Thomas,* Chief Judge, N. Randy Smith, Circuit Judge, and Sharon L. Gleason,** District Judge.", "parties": "", "opinions": [{"author": "N.R. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n UNI... | SIDNEY R THOMAS | N RANDY SMITH | SHARON L GLEASON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4579666/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,580,004 | United States v. Lamar Johnson | 2019-01-09 | 17-10252 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: J. Clifford Wallace, Johnnie B. Rawlinson, and Paul J. Watford, Circuit Judges.", "parties": "", "opinions": [{"author": "WALLACE, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nUNITED STATES OF AMERICA, ... | J CLIFFORD WALLACE | JOHNNIE B RAWLINSON | PAUL J WATFORD | 1 | {} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4580004/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,580,005 | United States v. Josue Martinez-Hernandez | 2019-01-09 | 16-50423 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Johnnie B. Rawlinson, Michael J. Melloy, * and Andrew D. Hurwitz, Circuit Judges.", "parties": "", "opinions": [{"author": "HURWITZ, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nUNITED STATES OF AMERICA, ... | JOHNNIE B RAWLINSON | MICHAEL J MELLOY | ANDREW D HURWITZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4580005/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,580,006 | Richard Zabriskie v. fnma/fannie Mae | 2019-01-09 | 17-15807 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: J. Clifford Wallace and Susan P. Graber, Circuit Judges, and Robert S. Lasnik, * District Judge.", "parties": "", "opinions": [{"author": "WALLACE, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nRICHARD ZABRIS... | J CLIFFORD WALLACE | SUSAN P GRABER | ROBERT S LASNIK | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4580006/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
9,024,649 | United States v. Josue MARTINEZ-HERNANDEZ, United States of America v. Oscar Carcamo-Soto | United States v. Martinez-Hernandez | 2019-01-09 | No. 16-50423; No. 17-50295 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9017901/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/9024649/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||||
4,580,573 | United States v. Lashay Lopez | 2019-01-10 | 16-10261 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Johnnie B. Rawlinson and Jay S. Bybee, Circuit Judges, and Paul L. Friedman,* District Judge.", "parties": "", "opinions": [{"author": "BYBEE, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STATES OF... | JOHNNIE B RAWLINSON | JAY S BYBEE | PAUL L FRIEDMAN | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4580573/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,580,574 | United States v. Jose Valencia-Mendoza | 2019-01-10 | 17-30158 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Susan P. Graber, M. Margaret McKeown, and Morgan B. Christen, Circuit Judges.", "parties": "", "opinions": [{"author": "GRABER, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nUNITED STATES OF AMERICA, ... | SUSAN P GRABER | M MARGARET MCKEOWN | MORGAN B CHRISTEN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4580574/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,580,575 | Paul Dachauer v. Nbty, Inc. | 2019-01-10 | 17-16242 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Sidney R. Thomas, Chief Judge, Susan P. Graber, Circuit Judge, and Leslie E. Kobayashi,* District Judge.", "parties": "", "opinions": [{"author": "GRABER, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n PAUL D... | SIDNEY R THOMAS | SUSAN P GRABER | LESLIE E KOBAYASHI | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4580575/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,580,576 | Judith Cox v. Wa Dept. Social & Health Svcs. | 2019-01-10 | 15-35964 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Michael Daly Hawkins and Morgan Christen, Circuit Judges, and Leslie E. Kobayashi,* District Judge.", "parties": "", "opinions": [{"author": "KOBAYASHI, District Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nJUDITH COX... | MICHAEL DALY HAWKINS | MORGAN CHRISTEN | LESLIE E KOBAYASHI | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4580576/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,580,891 | United States v. Gordon Hall | 2019-01-11 | 17-10422 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Frederic Block, * District Judge.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STATES OF AMERICA, ... | RONALD M GOULD | MARSHA S BERZON | FREDERIC BLOCK | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4580891/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,580,892 | United States v. Alfredo Landeros | 2019-01-11 | 17-10217 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Marsha S. Berzon, Johnnie B. Rawlinson, and Paul J. Watford, Circuit Judges.", "parties": "", "opinions": [{"author": "BERZON, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nUNITED STATES OF AMERICA, ... | MARSHA S BERZON | JOHNNIE B RAWLINSON | PAUL J WATFORD | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4580892/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,580,893 | Maurice Olivier v. Leroy Baca | 2019-01-11 | 13-56371 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Consuelo M. Callahan and Jacqueline H. Nguyen, Circuit Judges, and David A. Ezra,* District Judge.", "parties": "", "opinions": [{"author": "CALLAHAN, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n MAURICE ... | CONSUELO M CALLAHAN | JACQUELINE H NGUYEN | DAVID A EZRA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4580893/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,581,262 | United States v. Gordon Hall | 2019-01-11 | 17-10422 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Frederic Block, * District Judge.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STATES OF AMERICA, ... | RONALD M GOULD | MARSHA S BERZON | FREDERIC BLOCK | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4581262/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,581,260 | United States v. Brett Depue | 2019-01-14 | 15-10553 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Sidney R. Thomas, Chief Judge, and William A. Fletcher, Richard A. Paez, Marsha S. Berzon, Milan D. Smith, Jr., Sandra S. Ikuta, Morgan Christen, Jacqueline H. Nguyen, Paul J. Watford, Andrew D. Hurwitz and Michelle T. Friedland, Circuit Judges.", "parties": "", "opinions": [{"author": "BERZON, Circ... | SIDNEY R THOMAS | WILLIAM A FLETCHER | RICHARD A PAEZ | 2 | MARSHA S BERZON; MILAN D SMITH JR; SANDRA S IKUTA; MORGAN CHRISTEN; JACQUELINE H NGUYEN; PAUL J WATFORD; ANDREW D HURWITZ; MICHELLE T FRIEDLAND | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4581260/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,581,261 | Francis Hernandez v. Kevin Chappell | 2019-01-14 | 11-99013 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Kim McLane Wardlaw, Milan D. Smith, Jr., and Jacqueline H. Nguyen, Circuit Judges.", "parties": "", "opinions": [{"author": "NGUYEN, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nFRANCIS G. HERNANDEZ, ... | KIM MCLANE WARDLAW | MILAN D SMITH JR | JACQUELINE H NGUYEN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4581261/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
9,022,999 | Francis G. HERNANDEZ v. Kevin CHAPPELL, Warden, California State Prison At San Quentin | Hernandez v. Chappell | 2019-01-14 | No. 11-99013 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Nguyen", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9016237/", "author_raw": ""}]} | NGUYEN | NGUYEN | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/9022999/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,581,580 | Sunil Rayamajhi v. Matthew Whitaker | 2019-01-15 | 16-70534 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Susan P. Graber, Stephanie Dawn Thacker,* and Mark J. Bennett, Circuit Judges.", "parties": "", "opinions": [{"author": "GRABER, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n SUNIL RAYAMAJHI, ... | SUSAN P GRABER | STEPHANIE DAWN THACKER | MARK J BENNETT | 1 | {} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4581580/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,581,581 | Leopoldo Mendoza v. Fonseca McElroy Grinding Co. | 2019-01-15 | 17-15221 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: RAYMOND C. FISHER and MILAN D. SMITH, JR., Circuit Judges, and ELAINE E. BUCKLO, * District Judge.", "parties": "", "opinions": [{"author": "The Honorable Elaine E. Bucklo, United States District Judge for", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n ... | RAYMOND C FISHER | MILAN D SMITH JR | ELAINE E BUCKLO | 1 | {"RAYMOND C FISHER": "MILAN D SMITH, JR , Circuit", "MILAN D SMITH JR": "MILAN D SMITH, JR , Circuit", "ELAINE E BUCKLO": ", District"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4581581/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,581,582 | Guillermo Robles v. Dominos Pizza LLC | 2019-01-15 | 17-55504 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Paul J. Watford and John B. Owens, Circuit Judges, and Jennifer G. Zipps, * District Judge.", "parties": "", "opinions": [{"author": "OWENS, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n GUILLERMO ROBLES, an... | PAUL J WATFORD | JOHN B OWENS | JENNIFER G ZIPPS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4581582/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,581,583 | Applied Underwriters, Inc. v. Larry Lichtenegger | 2019-01-15 | 17-16815 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: MILAN D. SMITH, JR. and JACQUELINE H. NGUYEN, Circuit Judges, and JANE A. RESTANI, * Judge.", "parties": "", "opinions": [{"author": "M. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n APPLIED UNDERWRITER... | MILAN D SMITH JR | JACQUELINE H NGUYEN | JANE A RESTANI | 1 | {"MILAN D SMITH JR": ", Circuit", "JACQUELINE H NGUYEN": ", Circuit", "JANE A RESTANI": ","} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4581583/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,581,584 | Alquandre Turner v. Renee Baker | 2019-01-15 | 17-72044 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: A. WALLACE TASHIMA and MILAN D. SMITH, JR., Circuit Judges, and LAWRENCE L. PIERSOL, * District Judge.", "parties": "", "opinions": [{"author": "M. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n ALQUAN... | A WALLACE TASHIMA | MILAN D SMITH JR | LAWRENCE L PIERSOL | 1 | {"A WALLACE TASHIMA": "MILAN D SMITH, JR , Circuit", "MILAN D SMITH JR": "MILAN D SMITH, JR , Circuit", "LAWRENCE L PIERSOL": ", District"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4581584/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,582,013 | Applied Underwriters, Inc. v. Larry Lichtenegger | 2019-01-15 | 17-16815 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: MILAN D. SMITH, JR. and JACQUELINE H. NGUYEN, Circuit Judges, and JANE A. RESTANI, * Judge.", "parties": "", "opinions": [{"author": "M. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n APPLIED UNDERWRITER... | MILAN D SMITH JR | JACQUELINE H NGUYEN | JANE A RESTANI | 1 | {"MILAN D SMITH JR": ", Circuit", "JACQUELINE H NGUYEN": ", Circuit", "JANE A RESTANI": ","} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4582013/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,582,011 | Yahoo! Inc. v. National Union Fire Insurance | 2019-01-16 | 17-16452 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: MILAN D. SMITH, JR., and JACQUELINE H. NGUYEN, Circuit Judges, and JANE A. RESTANI, * Judge.", "parties": "", "opinions": [{"author": "The Honorable Jane A. Restani, Judge for the United States Court", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR ... | MILAN D SMITH JR | JACQUELINE H NGUYEN | JANE A RESTANI | 1 | {"MILAN D SMITH JR": ", Circuit", "JACQUELINE H NGUYEN": ", Circuit", "JANE A RESTANI": ","} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4582011/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,582,012 | Global Linguist Solutions, LLC v. Abdulraouf Abdelmeged | 2019-01-16 | 17-72516 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Rosemary Márquez, * District Judge.", "parties": "", "opinions": [{"author": "GOULD, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n GLOBAL LINGUIST SO... | RONALD M GOULD | MARSHA S BERZON | ROSEMARY MÁRQUEZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4582012/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,582,577 | Louis Taylor v. County of Pima | 2019-01-17 | 17-16980 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Mary M. Schroeder, Eugene E. Siler,* and Susan P. Graber, Circuit Judges.", "parties": "", "opinions": [{"author": "GRABER, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n LOUIS TAYLOR, a single man, ... | MARY M SCHROEDER | EUGENE E SILER | SUSAN P GRABER | 1 | {} | 3 | 0 | 1 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4582577/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,582,578 | Elisio Atenia Lorenzo v. Matthew G. Whitaker | 2019-01-17 | 15-70814 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Sidney R. Thomas, Chief Judge, and Raymond C. Fisher and Carlos T. Bea, Circuit Judges.", "parties": "", "opinions": [{"author": "", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nELISIO ATENIA LORENZO, No. 15-... | SIDNEY R THOMAS | RAYMOND C FISHER | CARLOS T BEA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4582578/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,582,992 | United States v. Ira Spearman | 2019-01-18 | 16-55177 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Sidney R. Thomas, Chief Judge, and Kim McLane Wardlaw and Marsha S. Berzon, Circuit Judges.", "parties": "", "opinions": [{"author": "", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nUNITED STATES OF AMERICA, No. ... | SIDNEY R THOMAS | KIM MCLANE WARDLAW | MARSHA S BERZON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4582992/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,582,993 | Rocky Mountain Farmers Union v. Richard Corey | 2019-01-18 | 17-16881 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Dorothy W. Nelson, Ronald M. Gould, and Mary H. Murguia, Circuit Judges.", "parties": "", "opinions": [{"author": "GOULD, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nROCKY MOUNTAIN FARMERS UNION; No... | DOROTHY W NELSON | RONALD M GOULD | MARY H MURGUIA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4582993/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,583,431 | Stillaguamish Tribe of Indians v. State of Washington | 2019-01-22 | 17-35722 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: M. Margaret McKeown and Michelle T. Friedland, Circuit Judges, and Susan R. Bolton, * District Judge.", "parties": "", "opinions": [{"author": "McKEOWN, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n STILLAGU... | M MARGARET MCKEOWN | MICHELLE T FRIEDLAND | SUSAN R BOLTON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4583431/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,583,432 | Bishop, Heenan & Davies v. Volkswagen Group of America | 2019-01-22 | 17-16020 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: MILAN D. SMITH, JR. and JACQUELINE H. NGUYEN, Circuit Judges, and JANE A. RESTANI, * Judge.", "parties": "", "opinions": [{"author": "M. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nIN RE VOLKSWAGEN “CLEA... | MILAN D SMITH JR | JACQUELINE H NGUYEN | JANE A RESTANI | 1 | {"MILAN D SMITH JR": ", Circuit", "JACQUELINE H NGUYEN": ", Circuit", "JANE A RESTANI": ","} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4583432/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,583,856 | Bishop, Heenan & Davies v. Volkswagen Group of America | 2019-01-22 | 17-16020 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: MILAN D. SMITH, JR. and JACQUELINE H. NGUYEN, Circuit Judges, and JANE A. RESTANI, * Judge.", "parties": "", "opinions": [{"author": "M. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nIN RE VOLKSWAGEN “CLEA... | MILAN D SMITH JR | JACQUELINE H NGUYEN | JANE A RESTANI | 1 | {"MILAN D SMITH JR": ", Circuit", "JACQUELINE H NGUYEN": ", Circuit", "JANE A RESTANI": ","} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4583856/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
9,022,983 | IN RE VOLKSWAGEN "CLEAN DIESEL" MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION, Jason Hill Ray Preciado Susan Tarrence Steven R. Thornton Anne Duncan Argento Simon W. Beaven Juliet Brodie Sarah Burt Aimee Epstein George Farquar Mark Houle Rebecca Kaplan Helen Koisk-Westly Raymond Krein Stephen Verner Leo... | Hill v. Volkswagen Grp. of Am., Inc. (In re Volkswagen "Clean Diesel" Mktg., Sales Practices, & Prods. Liab. Litig.) | 2019-01-22 | No. 17-16020; No. 17-16065; No. 17-16067; No. 17-16068; No. 17-16082; No. 17-16083; No. 17-16089; No. 17-16092; No. 17-16099; No. 17-16123; No. 17-16124; No. 17-16130; No. 17-16132; No. 17-16156; No. 17-16158; No. 17-16172; No. 17-16180 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Smith", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9016220/", "author_raw": ""}]} | NO_JUDGES | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/9022983/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||||
4,583,855 | Harmoni Int'l Spice, Inc. v. Robert Hume | 2019-01-23 | 17-55926 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Paul J. Watford and John B. Owens, Circuit Judges, and Jennifer G. Zipps, * District Judge.", "parties": "", "opinions": [{"author": "WATFORD, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nHARMONI INTERNATIONAL... | PAUL J WATFORD | JOHN B OWENS | JENNIFER G ZIPPS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4583855/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,584,426 | Narinder Singh v. Matthew Whitaker | 2019-01-24 | 16-70823 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: RAYMOND C. FISHER and MILAN D. SMITH, JR., Circuit Judges, and ELAINE E. BUCKLO, * District Judge.", "parties": "", "opinions": [{"author": "M. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n NARINDER P... | RAYMOND C FISHER | MILAN D SMITH JR | ELAINE E BUCKLO | 1 | {"RAYMOND C FISHER": "MILAN D SMITH, JR , Circuit", "MILAN D SMITH JR": "MILAN D SMITH, JR , Circuit", "ELAINE E BUCKLO": ", District"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4584426/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,584,427 | M. S. v. Lausd | 2019-01-24 | 16-56472 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Dorothy W. Nelson and Kim McLane Wardlaw, Circuit Judges, and Robert W. Pratt,* District Judge.", "parties": "", "opinions": [{"author": "The Honorable Robert W. Pratt, United States District Judge for", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FO... | DOROTHY W NELSON | KIM MCLANE WARDLAW | ROBERT W PRATT | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4584427/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
9,022,982 | M. S., a minor, BY AND THROUGH her guardian ad litem R.H. v. LOS ANGELES UNIFIED SCHOOL DISTRICT, a Public Entity | M. S. v. L. A. Unified Sch. Dist. | 2019-01-24 | No. 16-56472 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9016219/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/9022982/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||||
4,584,833 | Carl Curtis v. Irwin Industries, Inc. | 2019-01-25 | 16-56515 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Sandra S. Ikuta and John B. Owens, Circuit Judges, and Haywood S. Gilliam, Jr.,* District Judge.", "parties": "", "opinions": [{"author": "IKUTA, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n CARL CURTIS, ... | SANDRA S IKUTA | JOHN B OWENS | HAYWOOD S GILLIAM JR | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4584833/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,585,193 | Serah Karingithi v. Matthew Whitaker | 2019-01-28 | 16-70885 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: M. Margaret McKeown, William A. Fletcher, and Jay S. Bybee, Circuit Judges.", "parties": "", "opinions": [{"author": "McKEOWN, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nSERAH NJOKI KARINGITHI, ... | M MARGARET MCKEOWN | WILLIAM A FLETCHER | JAY S BYBEE | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4585193/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,585,194 | Michael Cuero v. Scott Kernan | 2019-01-28 | 12-55911 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Diarmuid F. O’Scannlain, Barry G. Silverman, and Kim McLane Wardlaw, Circuit Judges.", "parties": "", "opinions": [{"author": "rehearing, Judge Wardlaw wrote that she would have", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\... | DIARMUID F O'SCANNLAIN | BARRY G SILVERMAN | KIM MCLANE WARDLAW | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4585194/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,585,195 | Aspic Engineering and Constr. v. Ecc Centcom Constructors LLC | 2019-01-28 | 17-16510 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: MILAN D. SMITH, JR. and JACQUELINE H. NGUYEN, Circuit Judges, and JANE A. RESTANI, * Judge.", "parties": "", "opinions": [{"author": "M. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n ASPIC ENGINEERING... | MILAN D SMITH JR | JACQUELINE H NGUYEN | JANE A RESTANI | 1 | {"MILAN D SMITH JR": ", Circuit", "JACQUELINE H NGUYEN": ", Circuit", "JANE A RESTANI": ","} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4585195/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,585,457 | Wiley Gill v. DOJ | 2019-01-29 | 17-16107 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: MILAN D. SMITH, JR. and ANDREW D. HURWITZ, Circuit Judges, and RICHARD K. EATON, * Judge.", "parties": "", "opinions": [{"author": "M. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nWILEY GILL; JAMES PRIG... | MILAN D SMITH JR | ANDREW D HURWITZ | RICHARD K EATON | 1 | {"MILAN D SMITH JR": ", Circuit", "ANDREW D HURWITZ": ", Circuit", "RICHARD K EATON": ","} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4585457/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,585,458 | Desiree Gilberg v. Cal. Check Cashing Stores, LLC | 2019-01-29 | 17-16263 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Raymond C. Fisher and Milan D. Smith, Jr., Circuit Judges, and Lawrence L. Piersol, District Judge.", "parties": "", "opinions": [{"author": "FISHER, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n DESIREE GILBE... | RAYMOND C FISHER | MILAN D SMITH JR | LAWRENCE L PIERSOL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4585458/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,585,847 | Michael Frost v. Bnsf Railway Company | 2019-01-30 | 17-35513 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Ferdinand F. Fernandez, N. Randy Smith, and Morgan Christen, Circuit Judges.", "parties": "", "opinions": [{"author": "CHRISTEN, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nMICHAEL A. FROST, ... | FERDINAND F FERNANDEZ | N RANDY SMITH | MORGAN CHRISTEN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4585847/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,586,037 | Ezzard Ellis v. C. Harrison | 2019-01-30 | 16-56188 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "", "parties": "", "opinions": [{"author": "THOMAS, Chief Judge", "type": "010combined", "text": "FOR PUBLICATION FILED\n UNITED STATES COURT OF APPEALS JAN 30 2019\n MOLL... | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4586037/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||||||
9,022,984 | Ezzard Charles ELLIS v. C. M. HARRISON, Warden | Ellis v. Harrison | 2019-01-30 | No. 16-56188 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Thomas", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9016221/", "author_raw": ""}]} | THOMAS | THOMAS | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/9022984/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,586,380 | Anthony Booth v. United States | 2019-01-31 | 16-17084 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Mary M. Schroeder and Marsha S. Berzon, * Circuit Judges, and Sara Lee Ellis, ** District Judge.", "parties": "", "opinions": [{"author": "ELLIS, District Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nANTHONY K. BOOTH,... | MARY M SCHROEDER | MARSHA S BERZON | SARA LEE ELLIS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4586380/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,586,381 | American Beverage Assn. v. City & County of San Francisco | 2019-01-31 | 16-16072 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Sidney R. Thomas, Chief Judge, and Dorothy W. Nelson, Susan P. Graber, William A. Fletcher, Marsha S. Berzon, Sandra S. Ikuta, Mary H. Murguia, Morgan Christen, Jacqueline H. Nguyen, Andrew D. Hurwitz, and John B. Owens, Circuit Judges.", "parties": "", "opinions": [{"type": "010combined", "text": "... | SIDNEY R THOMAS | DOROTHY W NELSON | SUSAN P GRABER | 2 | WILLIAM A FLETCHER; MARSHA S BERZON; SANDRA S IKUTA; MARY H MURGUIA; MORGAN CHRISTEN; JACQUELINE H NGUYEN; ANDREW D HURWITZ; JOHN B OWENS | {} | 5 | 0 | 1 | 3 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4586381/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,578,285 | UNITED STATES of America, Plaintiff - Appellee, v. John Wayne HARGROVE, Defendant - Appellant. | United States v. Hargrove | 2019-01-02 | 17-2102 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Tymkovich, Baldock, Holmes", "parties": "", "opinions": [{"author": "HOLMES, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n Tenth Circuit\n\n ... | TYMKOVICH | BALDOCK | HOLMES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4578285/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,578,612 | Jane DOE; I.B., Plaintiffs - Appellants, v. April WOODARD, in Her Individual Capacity; Christina Newbill, in Her Individual Capacity; Shirley Rhodus, in Her Individual Capacity; Richard Bengtsson, in His Individual Capacity; El Paso County Board of County Commissioners, Defendants - Appellees, and Reggie Bicha, in His ... | Doe v. Woodard | 2019-01-03 | 18-1066 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Briscoe, Lucero, Matheson", "parties": "", "opinions": [{"author": "MATHESON, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Circui... | BRISCOE | LUCERO | MATHESON | 1 | {} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4578612/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,579,289 | UNITED STATES of America, Plaintiff - Appellee, v. Oscar ALMANZA-VIGIL, Defendant - Appellant. | United States v. Almanza-Vigil | 2019-01-07 | 17-2007 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Phillips, Kelly, Murphy", "parties": "", "opinions": [{"author": "PHILLIPS, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH ... | PHILLIPS | KELLY | MURPHY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4579289/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,580,578 | Marcia W. DAVILLA; Benjamin Blackstar; Thomas Blackstar, III; Vannette M. Branham; Edmond L. Carter; Patricia Carter Files; Harold F. Dupoint; Carrie G. Dupoint; Rudolph W. Fisher, Jr.; Cameron Keahbone; Sindy M. Keahbone; Gilbert C. Keahbone; Mark B. Keahbone; Mari L. Keahbone; Perry K. Keahbone; Blake E. Keahbone; Pa... | Davilla v. Enable Midstream Partners L.P. | 2019-01-10 | 17-6088 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Tymkovich, Lucero, Hartz", "parties": "", "opinions": [{"author": "TYMKOVICH, Chief Judge", "type": "010combined", "text": "FILED\n United States Court of Appeals\n Tenth Circuit\n\n ... | TYMKOVICH | LUCERO | HARTZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4580578/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,581,247 | LIBERTY MUTUAL FIRE INSURANCE COMPANY, Plaintiff Counter Defendant - Appellee, v. Dennis WOOLMAN, Defendant Counter Plaintiff - Appellant, and Clayton Spencer, Defendant. | Liberty Mutual Fire Insurance v. Woolman | 2019-01-14 | 17-3249 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Tymkovich, Holmes, Phillips", "parties": "", "opinions": [{"author": "PHILLIPS, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH ... | TYMKOVICH | HOLMES | PHILLIPS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4581247/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,581,546 | UNITED STATES of America, Plaintiff - Appellee, v. Marvin LOPEZ-AGUILAR, Defendant - Appellant. | United States v. Lopez-Aguilar | 2019-01-15 | 17-2121 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Bacharach, Baldock, Ebel", "parties": "", "opinions": [{"author": "BACHARACH, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth ... | BACHARACH | BALDOCK | EBEL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4581546/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,582,702 | Hamilton v. Northfield Insurance Company | 2019-01-17 | 17-7049 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Before TYMKOVICH, Chief Judge, McKAY, and CARSON, Circuit Judges.", "parties": "", "opinions": [{"author": "", "type": "010combined", "text": "FILED\n PUBLISH United States Court of Appeals\n ... | TYMKOVICH | MCKAY | CARSON | 1 | {"TYMKOVICH": ", Chief", "McKAY": ", Circuit", "CARSON": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4582702/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,582,750 | Hamilton v. Northfield Insurance Company | 2019-01-17 | 17-7049 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Before TYMKOVICH, Chief Judge, McKAY, and CARSON, Circuit Judges.", "parties": "", "opinions": [{"author": "", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH ... | TYMKOVICH | MCKAY | CARSON | 1 | {"TYMKOVICH": ", Chief", "McKAY": ", Circuit", "CARSON": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4582750/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
8,443,850 | Billy HAMILTON, - Appellant/Cross-Appellee v. NORTHFIELD INSURANCE COMPANY, - Appellee/Cross-Appellant. Oklahoma Association for Justice, Amicus Curiae. | Hamilton v. Northfield Ins. Co. | 2019-01-17 | No. 17-7049 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415277/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443850/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||||
8,443,851 | Billy HAMILTON, Plaintiff-Appellant/Cross-Appellee v. NORTHFIELD INSURANCE COMPANY, Defendant-Appellee/Cross-Appellant. Oklahoma Association for Justice, Amicus Curiae. Billy Hamilton v. Northfield Insurance Company | Hamilton v. Northfield Ins. Co. | 2019-01-17 | No. 17-7049; No. 17-7055 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Carson, McKay, Tymkovich", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415278/", "author_raw": ""}]} | CARSON | MCKAY | TYMKOVICH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443851/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,582,978 | MARALEX RESOURCES, INC., a Colorado Corporation; Alexis M. O'Hare; Mary C. O'Hare, Plaintiffs - Appellants, v. David BARNHARDT, in His Official Capacity as Acting Secretary of the United States Department of the Interior; The United States Department of Interior; The United States of America, Defendants - Appellees. | Maralex Res., Inc. v. Barnhardt | 2019-01-18 | 17-1421 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Briscoe, Lucero, Matheson", "parties": "", "opinions": [{"author": "BRISCOE, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH ... | BRISCOE | LUCERO | MATHESON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4582978/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,583,373 | Lina THOUNG, Petitioner - Appellant, v. UNITED STATES of America, Respondent - Appellee. | Thoung v. United States | 2019-01-22 | 17-3220 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Tymkovich, Holmes, Phillips", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887889/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v... | TYMKOVICH | HOLMES | PHILLIPS | 1 | {} | 4 | 0 | 2 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4583373/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,584,359 | SECURITIES AND EXCHANGE COMMISSION, Plaintiff - Appellee, v. Charles D. SCOVILLE, Defendant - Appellant, and Traffic Monsoon, LLC, Defendant. Peggy Hunt, Receiver - Amicus Curiae. | SEC. & Exch. Comm'n v. Scoville | 2019-01-24 | 17-4059 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Briscoe, Ebel, Hartz", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887910/", "author_raw": ""}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/o... | BRISCOE | EBEL | HARTZ | 1 | {} | 4 | 0 | 0 | 2 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4584359/ | Published | 1 | 1 | 1 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,584,360 | Randy CUMMINGS ; Cruz Gallegos ; Robert J. Garcia ; Richard Gonzales; Eloy A. Jaramillo; David Larranaga; Joseph Lopez; Rick Lopez ; David Montano; Angelo Rinaldi ; Chris Sweeney ; Josh Tillinghast; Tomas Trujillo; Jeffrey S. Wade; Joshua Hoselton; Charles W. Lees; Jaime Marquez ; Robert Mendoza; Armando Anchondo; Gust... | Cummings v. Dean | 2019-01-24 | 17-2072 & 17-2079 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Lucero, Holmes, Eid", "parties": "", "opinions": [{"author": "HOLMES, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n Tenth Circuit\n\n ... | LUCERO | HOLMES | EID | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4584360/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,584,820 | MTI, INC., Formerly Midwest Towers, Inc., Plaintiff - Appellant v. EMPLOYERS INSURANCE COMPANY OF WAUSAU, Defendant - Appellee. | MTI, Inc. v. Emp'rs Ins. Co. of Wausau | 2019-01-25 | 17-6206 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Lucero, McKay, Matheson", "parties": "", "opinions": [{"author": "LUCERO, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH ... | LUCERO | MCKAY | MATHESON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4584820/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,585,307 | UNITED STATES of America, Plaintiff - Appellee, v. Troy A. BONG, Defendant - Appellant. | United States v. Bong | 2019-01-28 | 16-3323 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Briscoe, Kelly, Bacharach", "parties": "", "opinions": [{"author": "BRISCOE, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH ... | BRISCOE | KELLY | BACHARACH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4585307/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,585,459 | UNITED STATES of America, Plaintiff-Appellee, v. Bobby G. PULLEN, Defendant-Appellant. | United States v. Pullen | 2019-01-29 | 17-3194 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "McHugh, Moritz, Eid", "parties": "", "opinions": [{"author": "McHUGH", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\... | MCHUGH | MORITZ | EID | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4585459/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,585,526 | In RE: UNITED WESTERN BANCORP, INC., Debtor. Simon E. Rodriguez, in His Capacity as Chapter 7 Trustee for the Bankruptcy Estate of United Western Bancorp, Inc., Plaintiff - Appellant, v. Federal Deposit Insurance Corporation, in Its Capacity as Receiver for United Western Bank, Defendant - Appellee. | Rodriguez v. Fed. Deposit Ins. Corp. (In Re United W. Bancorp, Inc.) | 2019-01-29 | 17-1281 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Briscoe, Seymour, Holmes", "parties": "", "opinions": [{"author": "BRISCOE, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH ... | BRISCOE | SEYMOUR | HOLMES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4585526/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
8,443,852 | United States v. Richard ROE | United States v. Roe | 2019-01-29 | No. 19-600 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Murphy", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415279/", "author_raw": ""}]} | MURPHY | MURPHY | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443852/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,578,980 | Jimmy Fletcher MEDERS, Petitioner-Appellant, v. WARDEN, GEORGIA DIAGNOSTIC PRISON, Respondent-Appellee. | Jimmy Meders v. Warden, Georgia Diagnostic Prison | 2019-01-04 | 14-14178; 15-14734 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Carnes, Marcus, Newsom", "parties": "", "opinions": [{"author": "ED CARNES, Chief Judge", "type": "010combined", "text": "Case: 14-14178 Date Filed: 01/04/2019 Page: 1 of 44\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT... | CARNES | MARCUS | NEWSOM | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4578980/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,579,003 | AARON PRIVATE CLINIC MANAGEMENT LLC, Plaintiff-Appellant, v. Frank W. BERRY, in His Official Capacity as Commissioner of the Georgia Department of Community Health, and Nathan Deal, in His Official Capacity as Governor of Georgia, Defendants-Appellees. | Aaron Private Clinic Management LLC v. Commissioner of the Georgia Department of Community Health | 2019-01-04 | 17-15144 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Tjoflat, Pryor, Gilman", "parties": "", "opinions": [{"author": "WILLIAM PRYOR, Circuit Judge:", "type": "010combined", "text": "Case: 17-15144 Date Filed: 01/04/2019 Page: 1 of 18\n\n\n [PUBLISH]\n\n ... | TJOFLAT | PRYOR | GILMAN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4579003/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,579,669 | Curtis SOLOMON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. | Curtis Solomon v. United States | 2019-01-08 | 17-14830 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Pryor, Grant, Hull", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "Case: 17-14830 Date Filed: 01/08/2019 Page: 1 of 13\n\n\n [PUBLISH]\n\n\n IN THE UNITED STATES COURT OF APPEAL... | PRYOR | GRANT | HULL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4579669/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,579,737 | UNITED STATES of America, Plaintiff-Appellee, v. Erickson Meko CAMPBELL, Defendant-Appellant. | United States v. Erickson Meko Campbell | 2019-01-08 | 16-10128 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Tjoflat, Martin, Murphy", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887834/", "author_raw": ""}, {"author": "", "type": "035concurrenceinpart", "text": "", "resource_uri": "https://www.courtlistener.com/api/... | TJOFLAT | MARTIN | MURPHY | 1 | {} | 4 | 0 | 0 | 2 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4579737/ | Published | 1 | 1 | 0 | 1 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,581,007 | Mark A. SACCULLO, as Successor Trustee of the Anthony L. Saccullo Irrevocable Trust for the Benefit of Mark A. Saccullo, Plaintiff-Counter Defendant-Appellant, Dorothy A. Saccullo, Counter Defendant-Appellant, Tax Collector of Charlotte County, Florida, Counter Defendant, v. UNITED STATES OF AMERICA, Defendant-Counter ... | Mark A. Saccullo v. United States | 2019-01-11 | 17-14546 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Marcus, Newsom, Anderson", "parties": "", "opinions": [{"author": "NEWSOM, Circuit Judge:", "type": "010combined", "text": "Case: 17-14546 Date Filed: 01/11/2019 Page: 1 of 15\n\n\n [PUBLISH]\n\n IN THE UNITED STATES... | MARCUS | NEWSOM | ANDERSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4581007/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,581,586 | Marcellinus PFEIFFER, Petitioner-Appellant, v. Rachel BACHOTET, Respondent- Appellee. | Marcelllinus Pfeiffer v. Rachel Bachotet | 2019-01-15 | 18-13918 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Tjoflat, Pryor, Rosenbaum", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "Case: 18-13918 Date Filed: 01/15/2019 Page: 1 of 17\n\n\n [PUBLISH]\n\n\n\n\n IN THE UNITED STATES COURT OF APPEA... | TJOFLAT | PRYOR | ROSENBAUM | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4581586/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,582,014 | UNITED STATES of America, Plaintiff-Appellee, v. MARITIME LIFE CARIBBEAN LIMITED, Interested Party-Appellant, Raul J. Gutierrez, Defendant. | United States v. Maritime Life Caribbean Limited | 2019-01-16 | 17-10889 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Pryor, Martin, Wood", "parties": "", "opinions": [{"author": "WILLIAM PRYOR, Circuit Judge:", "type": "010combined", "text": "Case: 17-10889 Date Filed: 01/16/2019 Page: 1 of 16\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COUR... | PRYOR | MARTIN | WOOD | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4582014/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
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